Depositions/Witnesses

Your At-a-Glance Tool for Information on Depostions and Witnesses

How to Take a Deposition
Dan Goldman and Mor Wetzler For lawyers learning how to take depositions, there are a few guiding principles to keep in mind and a number of traps to avoid.


On the Deposition Trail: Tips and Observations from a Young Lawyer
Matthew Moeller
Navigating the process of taking depositions to achieve the best results for your client

The Power Prep: Effective Preparation of Your Client for a Deposition
Erin E. Rhinehart
Strategic planning is necessary to ensure a successful deposition.


Litigation 101: Preparation and Defense of Your Deposition Witness
Amy E. Davis
The four Ps for witness preparation will ensure you and your witness will make the best impression at deposition.


How to Take a Deposition—Preparation
Kenneth P. Nolan 
Attorney and former editor-in-chief of Litigation magazine offers up his takes on preparing a deposition—and modern life for young lawyers.


Preparing a Rule 30(b)(6) Representative for Deposition
Bailey Smith Rule 30(b)(6) representatives play an important role in ensuring a favorable outcome.


Client Confidential: Counsel’s Role in Expert Preparation
Larry D. Harris, Esq. There are no two ways around it: Counsel plays the crucial role in the preparation of an expert in construction litigation. Read about a few important principles of law that one must keep in mind when working with the expert.

When an Expert Becomes a Judge-Elect, Testimony May Proceed
Lisa R. Hasday A lawyer hires an expert witness to address the reasonableness of a request for attorney fees.


Treating Physicians Can Serve as Defense Experts
Oran F. Whiting In a recent mass tort decision, the Appellate Division of the New Jersey Superior Court ruled that defendants may retain physicians who previously treated certain plaintiffs as experts against related or similar plaintiffs.


Forensic Expert Permitted to Identify Keyboard User
John W. Joyce A computer forensics expert may identify a specific person who downloaded information on particular computers based on the user’s access to the computers and a similarity of “file structures.”


Accounting for Damages for Dummies: Expert Opinion or Not?
Renee Choy Ohlendorf In the post-Daubert world, a witness’s years of professional expertise does not necessarily transform the witness into an expert.


States Enact Expert Witness Legislation for Medical Injury Actions
Christina Michelle Jordan At least 30 states have now passed legislation to reduce fraudulent, misleading, or deceptive testimony of expert witnesses in medical malpractice cases.


Pro Hac Vice Status Revoked after Ex Parte Contact with Opponent’s Expert Witness
Sean T. Carnathan The Supreme Court of North Carolina recently held that a state trial court properly revoked the pro hac vice status of two attorneys because of prior ex parte contact with an opponent’s expert witness.


Making Experts Matter
Harlan A. Levy Expert witnesses provide advocacy opportunities at trial not available with fact witnesses. Especially in difficult cases, expert testimony can be a unique tool to present evidence simply and persuasively.


Dirty Little Secrets of Expert Testimony
Robert J. Shaughnessy Few major areas of litigation practice are more opaque to the novice lawyer than expert witness work. Law school has almost nothing to say about it.

Magistrate Judge Examines Broad Scope of Rule 30(b)(6) Depositions
Karen L. Stevenson Ruling rejects minority view limiting Rule 30(b)(6) deposition to specified topics.

Can Attorneys Conference with Witnesses During Depositions?
By Douglas E. Motzenbecker In a ruling affirmed by the U.S. District Court for the District of New Jersey, a magistrate judge recently ordered a plaintiff to answer questions concerning the substance of discussions with her attorney during a break at her deposition. In Chassen v. Fidelity National, Inc., the plaintiff, a proposed class representative in a putative class action, was asked whether she would be able to attend the trial. At first, she testified that she would be unable to attend due to her work commitments. She then reversed herself after conferring with her attorney during a recess, stating that she could attend the trial after all, provided she had adequate notice of the trial date.


Working With the Seven-Hour Time Limit for Depositions in Federal Court
By Yasser Madriz and Ben Allen So you find yourself involved in a complex civil suit, your opponent designates the same witness as both their Rule 30(b)(6) corporate representative and a fact witness, and the seven hours provided under Rule 30(d)(1) to depose her seem woefully inadequate. Worse, you could even have substantially less than seven hours if there are other parties with aligned interests wanting to take a bite at the apple. What do you do? Obviously, the best solution is to extend the time limit by agreement with the other side, but if they refuse to cooperate, how do you ensure that you have sufficient time to examine the witness?

Deposing a Witness under the Hague Convention in a Mexican Court
Maria-Vittoria "Giugi" Carminati Parties seeking to depose reticent deponents abroad can do so under the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.


Working With the Seven-Hour Time Limit for Depositions in Federal Court
Yasser Madriz and Ben Allen So you find yourself involved in a complex civil suit, your opponent designates the same witness as both their Rule 30(b)(6) corporate representative and a fact witness, and the seven hours provided under Rule 30(d)(1) to depose her seem woefully inadequate. Worse, you could even have substantially less than seven hours if there are other parties with aligned interests wanting to take a bite at the apple. What do you do? Obviously, the best solution is to extend the time limit by agreement with the other side, but if they refuse to cooperate, how do you ensure that you have sufficient time to examine the witness?


Behind Closed Doors: Preventing False Deposition Testimony
Stephen M. Goldman and Douglas A. Winegardner Since the early 1990s, there has been a significant change in the ability of lawyers to engage in disruptive tactics that prevent examining counsel from securing a deposition witness’s full testimony. This movement has improved both the civility of pre-trial practice and the ability of parties to elicit the testimony to which they are entitled and thus to settle their disputes or prepare for trial. Yet, even if conduct within the deposition room is more professional than it used to be, the question about whether depositions are performing their assigned role in the truth-finding process turns on whether lawyers have interfered with that process in pre-deposition witness preparation sessions.


Representing the Non-Party Deponent Who Cares
Philip J. Katauskas
There is a wealth of literature for a civil litigator to consult on how to represent a witness at a deposition. Two of my favorites are Malone and Hoffman, The Effective Deposition: Techniques and Strategies That Work (NITA 2d ed. 1996), and Suplee and Donaldson, The Deposition Handbook: Strategies, Tactics and Mechanics (PESI 1988). A more recent and usefully concise piece is by Handler and Hirsch, “Defending the Deposition: A Primer,” in PP&D (Fall 2005), a newsletter published by the Pre-trial Practice and Discovery Committee of the ABA Section of Litigation. Those authorities advance general principles and rules that I would characterize as the minimalist approach to representing deponents; that is, they counsel a “don’t volunteer” and “just Answer the question” approach. One adherent to the approach and one of my mentors, Dennis Suplee, used to liken the deponent to a hockey goalie, whose job is not to score any points, but rather to prevent points from being scored. I often tell a client-deponent that, as a defender, I will consider his deposition successful if I come out of it with my case in no worse shape than when we went in.

Litigators on Experts: Strategies for Managing Expert Witnesses from Retention through Trial
Wendy Gerwick Couture and Allyson W. Haynes This book represents the collected wisdom of experienced litigators who provide a step-by-step guide to researching, retaining, and working with an expert witness.

Expert Witnesses: Extracting True Value (Audio CD-ROM)
Stephen M. Goldman Trial attorneys often rely upon expert witnesses to provide information to jurors and others in support of their case. Facilitating the presentation of effective expert testimony begins with expert selection and culminates in trial testimony consistent with the stategy of your case. Are you best prepared to identify an expert witness who can present testimony in the most effective way?

Conducting Effective Expert Witness Cross Examination: How to Impress the Judge (Audio CD-ROM)
Steven Peskind Esq, Anita M. Ventrelli Do you have judges short on time and patience for long trials? Do you have a hard time condensing your evidence into the time you have for getting organized for a trial?

Effective Depositions, Second Edition
Henry L. Hecht Effective Depositions is a comprehensive, practical guide through every stage of the deposition process. It concisely covers the law of depositions and related discovery issues and gives you a clear, thorough understanding of the process and its practical challenges and pitfalls so that you -- as either taker or defender -- can make the best use of the opportunities the process offers.

The Litigation Manual: Depositions
Priscilla Anne Schwab and Lawrence J. Vilardo An ABA best-seller, The Litigation Manual has been valued as much for its refreshing style as its practical, how-to approachMcElhaney's Deposition Notebook

Professor James McElhaney, one of the most sought-after speakers on trial practice today, brings his wealth of insight and his signature wit to a critical area of litigation...

How to Ethically Prepare Corporate Witnesses for Deposition and Trial
Dori Ann Hanswirth, David T. Lewis, Marcia Narine Litigators and in-house counsel will demonstrate how to ethically prepare corporate witnesses for deposition and trial based upon their experience in high-stakes litigation. Videotaped deposition testimony from high-profile cases will demonstrate the need for proper corporate witness preparation. This audio CD-ROM includes full program audio and PDF course materials. .

Global Litigator: Successful Depositions in International LitigationCraig Allely Navigating the complex, confusing rules applicable to foreign depositions and transborder discovery...

Showing Your Hand: A Counter-Intuitive Strategy for Deposition Defense
Steven Lubet Good things can happen when you reveal your hand. Professor Lubet challenges conventional wisdom and explains the psychological benefit to your bargaining position when your witness sings at the deposition.

How to Take Better Depositions and Perhaps Improve Your Marriage
Edward G. Connette A deposed witness is likely to tell more if she is treated as an equal. Placing the witness on the same footing as the attorney facilitates a smooth, easygoing exchange of information.

Deposing Corporations and Other Fictive Persons: Some Thoughts on Rule 30(b)(6)
Sidney I. Schenkier The Federal Rule of Civil Procedure that mandates depositions of corporations creates a number of traps that can ensnare the unwary attorney.

New Standards for Expert-Witness Disclosures
Thomas P. Branigan and Tina Georgieva Federal Rule of Evidence 702 governs the admission of expert testimony.

A Year in Review: Applying the Amended Expert Rules
Christina D. Riggs Welcome changes to Rule 26 of the Federal Rules of Civil Procedure took effect on December 1, 2010. It was universally anticipated that the amendments to Rule 26 would eliminate certain unnecessary expert discovery battles and open the door for more meaningful and extensive expert-witness practice.

'Hybrid Witnesses'and Federal Rule of Civil Procedure 26
Andrea Mahady Price and Kristin L. Beckman Treating physicians provide useful factual testimony about their diagnosis and treatment of plaintiffs alleging an illness or injury.

Winning the "Battle of the Experts" While Keeping Fees under Control
Lynn S. McCreary and David R. Singh Whether opining on liability, causation, or damages, expert witnesses can make or break your case. The outcome of trial often hinges upon the likeability, credibility, and communication skills of one or more star expert witnesses.

Ethical Preparation of Witnesses for Deposition and Trial
Erin C. Asborno James Fenimore Cooper originated the phrase "horse-shedding the witness," referring to attorneys who lingered in carriage sheds near the old courthouse in White Plains, New York, to rehearse their witnesses.

Early Case Assessment: Get Experts Involved From Day One
Lisa Pierce Reisz and David V. Dilenschneider Early case assessment. It's a hot phrase right now amongst litigators, and although it's been defined in many different ways, it essentially boils down to gathering information, conducting research, and performing other tasks early on in litigation, when it often matters most.

Expert Testimony Admissibility after Wal-Mart v. Dukes
Dennis S. Ellis, Katherine F. Murray, and Nicholas J. Begakis In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the U.S. Supreme Court ushered in uncertainty regarding the standard for admissibility of expert testimony at the class certification stage.

Federal Rule of Evidence 706: Court-Appointed Experts
John P. McCahey and Jonathan M. Proman Expert testimony is often central to the outcome of a trial. And a litigator is almost never surprised when the trial expert he or she retained—whether a scientific expert, business expert, or some other expert—reaches conclusions favorable to the litigator’s client.

Is Your Expert Your Ally or Your Enemy?
Mark E. Porada When lawyers retain experts in litigation, it is fair to say they expect those experts to help their cases, not hurt them. Usually, a lawyer has a hand in guiding an expert in what to say in a report; sometimes lawyers actually prepare those reports themselves and the parties agree that the preliminary back-and-forth drafts are not discoverable.

Rules Governing Experts: The European Perspective
James R. Tumbridge, Timothy D. Pecsenye, and Gregory J. Urbanchuk In the United States, the use of expert testimony is a routine and well-defined part of the litigation landscape.

Expert Approaches
Gregory P. Joseph Taking testimony from adverse experts is a tricky proposition—extracting what you want and bottling up what you don’t. Experts are advocates.

Engaging Experts
Gregory P. Joseph Experts are dangerous. Not just the other side’s experts—yours. Every note they take, every draft and document they write and every email or phone call they share with you may be discoverable.