Transcript for "Preparing for Deposition: From Outlines to Exhibits":
Hello. Hello, everyone. Welcome. Welcome. As people jump in here, I wanted to be the first to introduce myself. I'm Jacqueline. I'm a marketing manager here at Reveal, and I wanna want to walk you through a couple of high level points here just in case any of us have questions throughout. One, this webinar is being recorded, which means that you can go back later on and watch it again and soak up all that information, anything you need. Two, this is a live webinar, which means throw your questions in the q and a that you should see on the right side of your screen, and I will be pulling those and prompting our speakers today to help you guys get those questions answered throughout the webinar. And then finally, I will be sending out a survey at the very end of this. We'd love to hear your feedback so we can continue to push more webinars, better webinars, webinars that are specific to what you care about and what you wanna hear. There will be different times that are out that we'll throw some polls in the chat, which you should also be able to see on the right side of your screen near your chat messages and q and a, as well as some resources for you to download. You can download this PowerPoint today. You can download a great prep worksheet that our team has put together, specifically one of our speakers, Kathy, did. And then finally, there's also a blog we just published today, about, protecting privacy rights. So please feel free to checking out those resources. Without further ado, I'm gonna pass this back to our speakers today. Dash? Thank you, JQ. Welcome, everyone. Thank you for joining us for our webinar on deposition preparation. If there's a lawsuit, there's going to be a depo. That's a universal constant. And when I graduated law school, my first job was at a law firm in San Jose named McManus Faulkner. Back then, it was McManus Faulkner and Morgan. And one of the attorneys there was Kathy Bechtel, and and Kathy's with us today and learned a lot about the practice of law awaiting bar results. It was a scary, weird time because it was, you know, 2001. A lot happened. And I spent a lot of time doing page line summaries of depots. It was a great way to learn how to do a deposition by being able to do that kind of analysis. And it was summarizing depots the hard way with a dictaphone doing the page line summary, and then it would get transcribed, and then a paralegal would go through and issue code it. Today, you know, there are AI tools that do summaries. You can use different litigation support software to do a summary because I think it's a good way to learn how to do a depo. And, something can be lost if you just get a summary out of the gate. I I say learn how to do it first. But with that, want Cathy, why don't you come on stage with us? And we wanna get to know our attendees. So we have a surveys that we're gonna have throughout the content. And so the first survey is, what is your favorite courtroom movie? And we made this specific to courtroom. So, you know, there was a debate about including 12 angry men, and I went against it because that's the jury room. And so we want time in the courtroom. Now, Kathy, while people are answering the question, thank you so much for introduce you know, joining us today. And what is your favorite courtroom movie? Hi, Josh. Hi, everyone. It's great to be here. It's good to work with Josh again. We worked together so long ago, but this has been really fun to get ready for this and, share, all the secrets I've gained over the last twenty five years or so I've been doing this. My favorite courtroom movie is My Cousin Vinny. It's got my favorite, expert, testimony where you qualify an expert. I think the movie's funny and realistic. I think they showed it in evidence when I was in law school, and it hits on all those points that we try to learn and make human as we do trial work. At the end of the day, the law is about people. And so with all all the wonderful technology that we have to help us practice law, at the end of the day, it's about human beings. Now, Kathy, can you tell us about your practice area? And while we can put the poll up, and then we're gonna hear from all of us, all of our attendees about their main area of practice. So, So I've been a family law practitioner, which means I do divorce, in California. So I'm a divorce lawyer, and I, have been doing that for almost my entire career. I also did a little bit of civil litigation, a little bit of criminal early on, business litigation. So I've learned, as a young lawyer, all a a variety of different practice areas that really helped in my family law practice. And now I have a small family law firm in California where we do pretty high asset divorce cases, and it really touches on all aspects of litigation. So, we do a fair amount of trial work, take a fair amount of depositions, and, and it definitely, help people through a really tough time. So family law is one of the most important complicated areas in my opinion because it's how people frequently interact with the courts. You know, the number of, marriages that end in divorce is sad, and it's the way people experience a lot of interactions with the courts, whether it's child care or, you know, alimony. There's lots of, you know and people who are, you know, once in love are now hurt. We I know we have a lot of people who have different practice areas and, JQ, if you could put up the survey about what is your area of law, because there's lots of areas that people practice, whether it's civil litigation, which has been my main area. I've worked on maybe two family law cases, you know, wills and trusts, you know, criminal defense. There's municipal, environmental, corporate. You know, there's, many shades of the rainbow here, but, you know, share, what you what you do. And, the results are in, My Cousin Vinny Buy a Landslide for, for the results. So, so I'm not surprised by that one. It is a classic, Oscar winning film. So, while people finish up the practice area, here's what we're gonna talk about today. You know, why we have depositions, how to prepare, what makes an effective deposition exhibit, you know, other admissibility concerns to have, and and dealing with modern ESI and overcoming objections. So let's take a look at why we have depositions to begin with. And, you know, the big pun is reveal the truth because you need to find out what happened. You know, there are the, you know, main questions in every lawsuit of who, why, what, when, where, and how of why are we here, what took place, and depositions are a great way to answer some of those questions after you've looked at documents and you have an idea of what you're dealing with. So let's let's take a look at some of the poll results. JQ, how oh, it looks like we have a lot of civil litigation and some family law. So, again, that's cool to see, for for our results. So there are many types of depots. You know, you can be deposing the plaintiff. You could be going after an expert, other you know, again, the defendant, third parties, lots of approaches here. And for everyone who's tuning in, please, you know, in the chat, say hi. Say your name and where you're from so we can we can hear from you. Well, let's get into the finer points of deposition prep for an adverse party. Now these are key questions of, like, how do you prepare the outline? You know, there are the cause of action approach. There's the defense approach. There's jury instructions. Kathy, can you walk us through how you like to approach preparing for a deposition? So, in my line of work, this is, you know, often we get ready to go to trial. We don't always end up at trial. And a deposition is, an opportunity, one of the only opportunities usually that, as the lawyer on the opposing side, you're gonna have to talk to, the opposing party. And so and and then maybe some other witnesses that you might not otherwise be able to call on the phone and find out what they have to say. So it's a really important part of our getting ready for trial. I sort of have a rule of thumb that I'm not going to trial unless I've taken, at least the deposition of the opposing party and possibly some other witnesses, because I don't like to go to trial and not know what that person's gonna say at trial. So I recommend that if you know that you need to get ready for trial and generally, I prepare a case like it's going to trial and have opportunities to settle along the way. But we start with the pleadings. You know, what, are the issues in the case? You know, not every issue is gonna be a trial issue, and so you need to understand where the dispute is. And that's true of any litigation, any kind of, work that you do. You have a dispute and you need to figure out what has been plead, what are the concerns, where is the differences of opinion between each side factually and legally? And then and then from there, what must each side prove? And so I just gave some examples here, in my line of work, custody and visitation. You know, we look at the best interest of the child. It's guided, by the family code. But then factually, you know, what's the parenting history? You know, what's happened at court? What brought us to this dispute? And what does each side want that, would require some court intervention to decide. Same for support. Now we're looking at more financial stuff, like who earns what? Is there some dispute about the income or the assets between the parties? Are there, questions about what happened with certain assets, that we can only find out, from a person, on the other side? Typically, we've done a fair amount of homework ahead of time. We've gotten some documents, done some initial discovery to kind of narrow down and see if we can answer those questions another way. But but at the end of it, we wanna know what the opposing side is gonna say at trial. And so that's sort of how I begin my framing up what we're what we're after in this deposition. It's a good approach. Now your the idea of case themes is one that you've spelled out here. Can you walk us through how you, approach case themes when you're getting ready for a deposition? I think I think as you begin any case, you're, already thinking about what it is the message from your client. What it is they want, why they want it, and why they should get what they want. And and and and where is the middle ground? I think that's always an important thing to keep in mind. And so as you're working up the case, you're thinking always about that that theme, you know, and and I had just some examples here of of opposing sides and and case themes. So, you know, your client's a dedicated, involved parent focused on the children's well-being. So, of course, they should have fifty fifty custody. The other side might say the, their parent is the primary caretaker and should retain primary custody. So now we're gonna work the case up trying to figure out, you know, if if there's truth in in the opposing side's view, what's that based on, and explore, the facts and legal positions about why, they should be, entitled to to have more custody than than my client, for example. And we look at you know, I just kind of laid it out, stability and consistency consistency in the children's routines. But then we also have other themes, financial transparency, conflicting, positions about what the status quo has been, what the disruption is to a child's living situation, a client's income and hidden assets. So all of those things might go into one deposition because we have one shot to depose this client. So although you really are focused on custody, if you're gonna take a deposition, you really need to have flushed out all the things in your case that you wanna cover in that deposition even if right now maybe that's not what you're fighting about. Sometimes there's benefit in taking the deposition earlier, if you're gonna pursue, you know, maybe some early litigation about custody, but often we wait until a little further along in the case so that we can get the full picture. I've worked on more than one case where we've done depots, and, you know, the case has evolved. And you realize we didn't ask any of those questions early on because no one was thinking about that. Like, the other side wasn't talking about those issues. It evolved over the course of written discovery and motion practice that the case changes. And, like, that raises interesting questions about, like, do you need to do a depot again? Do you do you attack it as a PMK depot instead? And, you know, depots are something that we all do. So I have a poll question about how many depositions do you take or defend in a month? And, Jake, if you could put that up. Now, you know, the question first is to Kathy. How many do you see, in the course of a month? Are you, like, a couple times, or is it, like, quiet for a bit and then all of a sudden you have six? Like, what's your practice like? would say it's really sporadic. I had one yesterday, so I'm coming first out of of a third party deposition yesterday. I, you know, I think we take a few a year. I go to trial a couple of times a year, and so it really is, dependent on where we are in that sort of trial cycle. My busiest year, I had nine trials in one year, and I was taking depositions that felt like constantly, I never wanna do that again. But I have typically, like, one or two trials a year, and so we might have a handful of depots. So I I would say in my practice that they're not as common as they might be in some other. And and we don't take a lot of third party depositions. We take mostly the parties. Yeah. There's, so results are coming in. Most are in the one to three category, some zero, and some are plus seven. And that so varies with the nature of the cases that you're you're handling. There's a lot of factors. Like, we one of the cases I worked on when I first learned litigation support technology, The defendant was deposed seven times. So there were seven volumes to his to his deposition. His wife was deposed four. Our client was, like, four or five. Like, it was so heavy with depots. It was maddening. There are the cases where, you know, you can have frequently just lots of people, like multiple corporations suing each other. Now you have different people who are, you know, going under oath. So, yeah, it can be conflict complicated and intense, which brings us to the types of depositions that are taken, which is the other poll of, you know, is this parties? Are they non parties? Are they PMKs? So, again, those are all over the map. And, like, I've seen all of the above, whether it's treating physicians or experts. So, like, I've seen them all. Cathy, I'm sure you have too. Yeah. I had a business litigation case early in my career. We had a a work party gone wrong, and nobody remembered what happened at this work party. And we took, I don't know how many depositions, eight or nine. And it wasn't until the very last deposition of the person who was involved in this fiasco, and and he, for some reason, knew everything. And it was like we'd all built up waiting, waiting, waiting for finally somebody to tell us all what happened at this after party. So sometimes you just have to to take quite a few to get to the bottom of what happened and understand what it's really about what are people gonna say at trial, and and let's not be surprised. So, you know, my view is you wanna understand for every witness that you're gonna depose, if you're gonna bother with the deposition, I wanna hear everything that person has to say on the subject. I know some people have a different view. It might be more like a cross examination. It might be I just wanna get sound bites that I can use at trial, and so I'm gonna focus my questions on eliciting testimony that I like. My personal strategy is, you might do some of that, but, really, I just wanna hear all the answers to every question that I can think of so that I'm not surprised because I can deal with any of that at trial. Good strategy. There's something to be said about being able to size up the witness. So, on my old firm, we had, insurance litigation coverage and food safety cases, and this carrier mandated that every depot be video recorded. And so that way, it's helpful to actually see how the witness responds. Early in my career, we had, again, video tap, depots were new. And the questions asked, the answer is, you know, just no, and, like, that's the only thing you see on the transcript. But watching the video, questions asked, the opponent turns bright red, sweat running down his forehead, and through grit teeth says the word now. Different context. It's like it's like, that's gonna be handy later. So we're we should explore that, and, hopefully, that'd be fun impeachment if he gets a different answer during trial. Now you've outlined some of the, like, witnesses. So while we talk about your witness profile that you, put together and and talk us through how this works. Yeah. So I think it's helpful, when you're thinking about especially if you've got a handful of people that you think you might wanna depose. You you wanna understand why that person's important to your case. So we're not gonna just take depositions for the sake of taking a bunch of depositions. It's very expensive, you know, in my line of work that's coming out of a real person's pocket. So we wanna make sure that we're, efficient, focused, streamlined. What are we gonna get from this witness? Why are they important? Can I get it from somebody else? And sometimes, like that case I mentioned earlier, there's just only one way to find out what really happened and that's to kinda go through all the people until you get get those explanations. I think it's also important to think about as you're preparing for a particular witness's deposition, you know, what do you think they saw, what or or experienced or have to contribute, to the story that you're trying to, put together for trial. What documents are gonna be important for that witness to authenticate. So one reason to depose somebody over another person is that maybe they're the only ones that that handled a particular set of documents, or or were the custodian of those records or knew about how the mechanics of the accounting worked, for example. And so as you're taking the deposition, then you wanna, as Josh said, kind of assess the credibility of this witness. What do they actually know? How can they contribute in terms of information about the document or the facts of the case? And then some people just don't testify well. And so I think even for your own client, that's really important to to gauge, obviously, prepare them. But to assess the other party, you know, I have lots of cases where we just have two people, two, you know, a a husband and a wife. And so as you're taking that person's deposition, especially in a custody case, I've had a few occasions where I'm like, I kinda like this person, and I think they're gonna testify very well. And I can appreciate that maybe I need to rethink my case of it. You know, and and and so that, I think, is another reason we have this discovery side of things so that we can assess the merits of our own case. You know, remember, you're hearing everything from one perspective for a long time, you know, and you believe and buy into your client's view of the world. But sometimes when you get a different perspective on that, it can kind of make you rethink how you're gonna approach the case or the merits of the case. And I think that's really important, to share with especially in a in a practice like mine where it's very personal and everybody sees things through their own glasses and believes their own view of the world. And and our job sometimes is to kinda think, okay. Well, maybe we don't wanna push so hard on that particular issue if if maybe it's not gonna hold up well. It's the truth of what we're after in in in these early discovery proceedings. Yeah. I've worked on cases where the adverse parties are clearly, people who testify well, who look good, who are relatable, and that makes you think, is this a good idea, you know, to to push harder? You know, it helps you reassess. It's like jurors are gonna identify with those individuals, and that could backfire for your client if you're not careful. So, again, it gives you a chance to to look in and plan. Now you put together some important, guardrails, and I think that's also because I know where you were mentored. So, and I I learned some of these tricks too. But can you can you share the importance of these guardrails? Yeah. This is I know we're talking about taking an an adverse deposition, but I think it's also a good check-in about how to prepare your own client for submitting to a deposition, or third party, perhaps if you're representing them or your own expert to some degree. But but I do a fair amount of prep with my my, clients before they're deposed. And, you know, I think making sure, that any witness that's gonna be deposed, make sure you listen to the full question. Let the person finish talking. You know, it's not a conversation. We tend to jump in and wanna, you know, anticipate and rush forward with what we're gonna we think is the important part of the story, and this is not the witness's time to tell their story. And that's, I think, a really hard thing for when you're trying to prepare a witness about being deposed. The they don't get they don't get anywhere by sharing their whole side of the story during this process. You gotta make the lawyer do the work, ask the next question, have them, just listen to the full question and then answer only the question that you were asked, and the shortest possible, most truthful answer, which is often yes or no or probably more often. I don't know or I don't remember. And so I always tell folks to, you know, make sure you roll a question in your mind before you answer it. It forces the witness to slow down and digest what's being asked of them so they're not kind of previewing in their mind or, you know, which is what we do in conversation. We don't listen to people. And so this is a real, exercise in slowing down, listening to what's being asked of you, and then really thinking about what is the most truthful, answer that's the shortest answer. It's usually not a long dialogue. So if you can answer the question in five, answers to any question, yes, no, I don't know, I don't remember, and then maybe, like, a one or two sentence or phrase answer that just really answers that question. I also think it's important to remind people, you know, they're testifying under penalty of perjury. We want them to tell the truth. Like, I don't I don't want, you know, the truth is your friend. So, typically, in my practice, if people stick to the truth, it's gonna line up with all the documents. And so you don't have to be creative and try and outguess or outfox the person, questioning, if you just stick to the truth and then not volunteer a lot of extra stuff, it'll go a lot faster. Yeah. It's the the importance of knowing how to answer the question and then re refraining from being helpful. So, like, I've helped, defend some IT guys who were deposed in the case, and their default is I'm supposed to be helpful to figure out, yes. This is how SharePoint works or this is our Salesforce system. Like, you know, that's their job. And telling someone, if you don't know, say you don't know. Don't opine, I don't know, but this is how I would do it. That and that that happened despite the, you know, prep work of, like, please don't do that. Don't lean in on the fact you just wanna help someone understand how the email system works when they should just ask the question and say, I don't know. Do you get into the difference between I don't know and I don't remember when prepping a witness? Yeah. I mean, I think I think I don't remember usually is at one time, I did know, but as I sit here right now, I can't remember. And that's a good way to preface it. As I sit here right now, I I can't remember. And and then the as the questioning lawyer, you can say, is there something that I could show you that you might help you remember? And and what would that be? And it might be a document. You could also ask some follow-up questions, you know, to try and help, you know, narrow the timeline or help, frame who might have been there. You know, that that sometimes can jog someone's memory. I don't know is different, and it doesn't mean that if you weren't shown something, you might then know the answer to the question. But, generally, I don't know really goes to a question that's asking about, you know, maybe how something came to be or, you know, a particular dollar amount on a on a financial schedule. You know, what was the source of that of that conclusion about that amount? I don't know. Like, it may be because I'm not the right person to answer that question. It doesn't mean that I don't have a valid, case or my claims aren't valid. It just means the way that that lawyer asked that particular question is asking me to do some kind of calculation that, for me right now as I sit here, I don't know how that happened. And. so I think that's tricky for people. I think you're right, Josh, that people wanna be helpful. I certainly do. People pay me a lot of money for my advice and to know the answers to questions, and that's true of a lot of our, clients and witnesses that we're deposing. And so, and and I think generally people wanna tell their story. You know? They. want to, you know I think we have that in our culture that if I just explain, it'll make it go away or you'll understand me. And, you know, maybe that's true, but generally in a deposition, that's not probably the right time to do that. On on the stand at trial is probably a better time to to have your lawyer guide you through that exercise. No one wins the deposition, but you can sure lose the case in the deposition by people going down that line of, you know, I've had to advise clients who were, you know, plaintiffs. Like, you know, I got something to say. It's like, respectfully, that's closing argument. We're not doing closing argument in the deposition. This is not a time that you're getting even. Like, this is you answer yes, no, I don't know, or I don't remember. So, like, all important. So part of our profession is for storytellers, which means we need to be able to tell the story. There are multiple ways to tell stories and one of which is building a chronology. You know, Kathy, can you walk us through how you approach building a chronology for depo. prep? Sure. I think, any part of getting your case together, whether it's, thinking about discovery, written discovery early on, or working with a client, like, even almost from the intake when you first meet them, and then all the way through the case. We usually keep a running document. We call it, a CAS or case analysis and strategy, and we continue to build a chronology and and build the themes of our case and legal analysis and helpful documents and witness information as we go. And I think that really as you get to the point of having, depositions start occurring, then you're gonna look back and think about, you know, what key dates do we wanna cover that really is gonna frame the time period that you're asking about, what decisions, happened in the case, you know, who talked to who about what, you know, if you have agreements, oral or written, you wanna know what happened, who was there, who wrote it, you know, I mean, all of those kinds of things. And so as you're kinda trying to figure out your chronology, you're gonna see where you're missing some of that information. Either your client can't fill in or they have an opinion about it, but that might be in dispute or or maybe the timing of when things happened affects the elements of what you have to prove. So those are all really helpful as you, begin to put your case together. It it it also helps identify weaknesses in the other side's case, maybe your own, you know, delay, notice, maybe there were things that happened in between, you know, a and b that might have been a causation issue that you haven't thought about. Maybe somebody's action was a pretext for something else. Especially, I like to look at declarations that people have filed in the case all along the way. A lot of times, by the time you get to where you're taking depositions, there have been a fair amount of testimony already from that party that's happened, for months or years before you actually get to the deposition. And there's some really interesting nuggets that they said that now maybe their position was different or or you wanna expose or talk about, like, why did you say this? And that inconsistent explanation or things that are a little, maybe a little dissonant from their current position, might might help you, get ready for trial or or to understand where they're coming from because sometimes, you know, a declaration is only part of the picture. It's about that particular issue you put in a at a hearing. And because you only ever heard one side of the story from your client and then you've got these pieces of another person's story, being able to just ask questions and get the whole story in real time, is very helpful to understand what their case is about. Well said. Well, let's talk about depot exhibits because we have lots of data, and we have lots of records. And no one's gonna go into a deposition and say, I have 700 depot exhibits for this one person over seven hours. So you need to find, you know, the magic 10 that you want that could be used to trial or motion practice. So this is an art. Now you have your list of defining issues in play for defining what makes a good exhibit. Help us understand what makes a good exhibit. So this is just an example. You know, we often look at income and and we're trying to figure out what the support should be, so call it child support. And so we collected and gathered a slew of these kinds of financial documents about, you know, tax documents, maybe some business records, QuickBook files, balance sheets, credit card statements, bank statements. We in Family Law in California anyway, the parties have to do what we call disclosures where they, you know, put in a form declarations, what they think all their assets are, and then also what their income and expenses are so that we can use that information to figure out, what the right child support should be. And so as you're you know, if that's become an issue, maybe not every single thing is an issue, but maybe, you know, you've got business income and it's not clear what's happening in the QuickBooks with the income and with a small business, maybe some of the stuff's not totally accounted for. So maybe you wanna question someone about that. And so focusing on the bucket, that's your issue about that, and then looking at the documents that you have. And as Josh said, you know, you have maybe 10,000 documents at some point and you're not gonna ask about every document. But you wanna kind of hone in on the key documents that would help you, elicit from the witness their explanation as to maybe why their books aren't lining up with what it seems like it should be. Maybe there's not enough income. Maybe the expenses are really exorbitant and aren't explained. So you're looking for missing information in the documents that you have. You don't wanna revisit things that are kinda self explanatory, but you might wanna use some of those documents to show the witness. Well, this says this, so how come in your, you know, like, in your QuickBooks, that doesn't really line up with your tax return. So in your QuickBooks, I see that you're, you know, having, you know, maybe a $100,000 of income, but you've got $99,000 of expenses that look like personal expenses. And so your tax return is a little short, so explain that. And that might get you some information that you can use. Yep. Finding the key documents is requires analysis. It requires prep and requires understanding human nature. And, like, that's all hard. That's also why we're lawyers in figuring out what's going to actually have some punch. Like, one of my favorite memories of a depo was a witness saying, hey. That never happened. And we thought he was going to say, I deny this outright. So the next exhibit was, you know, an email from him saying the exact opposite and putting that down in front of him and letting him look at it and seeing him him turn bright red and having a very fun line of questioning after that. And then all of a sudden, they were interested in mediation. So, again, being able to analyze the documents so you can have those meaningful questions. Because if not, you have, you know, hundreds and hundreds of pages from tens of thousands of records, and you're not gonna get all of those into court. There are too many horror stories of people preparing for court and sending 30 binders of, like, here's all of our perspective trial exhibits, you know, and judges go nuts over that. It's like, you're not doing this. What are the 10 you actually need? I'm sure that never happens in family law, Kathy, or am I just dreaming? Well, I I always say that you, you know, have all these documents that you, you know, even at a deposition, you might go through, I don't know, 20 or 30 or maybe 40, documents. That's probably a stretch. And then at trial, you might have, like, 10 exhibits. Like, does that really matter? You know? So it definitely is an art. I think, you know, I've had a few depositions where, you know, our one shot, you know, do the cross examination is really at that deposition, and that's that's a really hard thing to gauge. I think you just have to make the decision and commit if you're gonna do that and then realize that you may have, you know, taken away some of the surprise at trial, but what you gained is you know exactly what they're gonna say. And now they've testified about it, and you can use that testimony at trial. And I I'm something I learned as a very young lawyer watching a really skilled trial lawyer for many years, and and people are still surprised, at least in California because that's where I practice. You can read deposition testimony of a party into the record. You don't have to cross examine them about it. You can just read the admissions in, and it goes in as if they were testifying. So that can be very effective. Sometimes in a video deposition, if your client has resources to do that, you might catch the cross examination moment, online video. I've definitely had that happen, in a really complex custody case where we had a, an alcoholic, parent who was not truthful during a custody evaluation, and we had, obtained some records that during the evaluation, they'd actually had a DUI and had a major head injury and, had delayed the custody evaluation because of this, injury arising from alcohol. So I just sprung it on him during the deposition after getting testimony that, you know, explained why they were sick and had the flu and what have you. So we we we we we took our shot during the depo, and then, we used that that video at trial. It was very effective. But I I really decided in that moment, I wanted to know what they were gonna say because sometimes there's an explanation that you can't think of. And so that's really where the art comes in and the experience, and I don't know that there's really a right or wrong answer. You just go you have to commit and then get the testimony and then go with it. You have to understand people, and that's hard. And in figuring out how will they react and how will the judge react because if we get family law, no jury, Cases with juries, sure. But, again, understanding that human quality is why we exist. Now there's another part of depo prep that can get missed. It will happen to the best of us, and that's thinking about admissibility. And you raised the importance of raising authenticating questions. And, like, if you're doing a summary judgment motion, the supporting evidence has to be admissible, which means you need to get that in either a declaration or, testimony at a depot. And so when I do my depot outlines, I have the authenticating question outline of how to approach this. And, again, there are other approaches that you could have for this. But, again, you can, you know, either surprise someone at trial if they have a party admission that they then deny on the stay stand, attack, all kinds of credibility issues. Kathy, any any thoughts to add to that? I mean, I think for every document, I'm always thinking about that's a great email or that's a great letter or, schedule or something, and I'm always thinking about what witness is gonna testify about this at trial. So is there an expert I'm gonna use that, you know, it's gonna you know, everything's hearsay. Right? So if it's on a piece of paper, it's being offered for the truth of the matter asserted. You know, you have a hearsay objection coming. So you need to always be thinking about what's my exception to that and and how am I gonna get that in if I think it's important enough to use as a trial exhibit. A deposition is a really great way to explore that with potential witnesses for those documents. So if I have and we're just buried in emails. So text messages, emails, like, everybody, you know, writes everything down and has fights and everything else in emails. So having those emails so that you can get a person, is that your email address? Did you write this email? When did you write it? Who were you writing it to? Why? What were you doing? All of the questions. Then you've basically solidified your ability to do that on the stand. And sometimes and this is the really beautiful thing about a deposition. If I've asked the right questions and I'm getting really great testimony about the document and what happened and what they were after and why they had the conversation, I don't need that document because they just testified about it. And so now the fact that they've said whatever it is I want them to say is just an admission that they'll I I can ask them that question at trial, and if they don't say the same thing, I can use their deposition testimony to get that fact, and I don't I don't need that document anymore. So that that's one really good way of approaching, especially emails and things that are a little harder. So I like and, again, different practice areas can have different focal points. And so I've dealt with a lot of, motions and summary judgment and and related that require, you know, like, hey. This needs to be authenticated, and a demo is a good way to do it so we don't have to do it in a bunch of, declarations, you know, during motion practice. Now you put together this great outline about attacking the document, and can you walk us through that? So, you know, I think anything to do with who is the author of the document, whose signature. I I I like to ask about signatures even when I know, you know, it's obvious. It's their income and expense declaration. Is that your signature? Do you know that you signed it under penalty of perjury? Who prepared it? When was it prepared? Sometimes we have, witnesses who have only relied on their lawyers in preparing some of these forms, and they have no at least they testify. They have no absolutely no idea how the numbers got on to the income and expense declaration. So that's not helpful to them to understand why it was prepared, who prepared it, how involved were they in the preparation of the document. Sometimes there's handwritten notes on documents. You see this sometimes, in expert files. So if you're taking an expert deposition, one of my favorite things to do is to go through the actual files. And sometimes that's hard because you get it, like, at the deposition or right before the deposition, so you have to, during breaks, quickly rummage through. But I love to look at, documents where they might have made handwritten notes or, margin notes on deposition transcripts or other documents that they had. And then to ask them, what does that say? Who wrote that? Why did you say that? I've had some I found some really interesting and and damaging notes, there where people revealed, maybe opinions and and thoughts that they hadn't put in their final reports. And then, you know, sort of, were there multiple versions of a document, and what happened to those versions and why? You know, was it complete? Anything missing? I think one key question that you can always ask any witness at the end of a string of questions about anything, anything else? So you're capturing is there something else that you know about this document that I haven't asked you that you wanna tell me? And I see there's a question to the right about somebody who maybe says a whole bunch of stuff, at trial, but maybe omitted a bunch of stuff during the deposition. And I think that's, tricky. And, you know, if you're, have good questions and you've asked questions and they don't know or they don't remember and then suddenly they have a, you know, miraculous recovery of their memory, that's a credibility issue. And I think what you can do, in trial cross examination is kind of go through the opportunities in the deposition that they had to reveal that information. And if it was really egregious, it's gonna be pretty apparent that they they were evading those questions. But you do have to ask enough questions and follow-up questions. It's not a, it's not enough to just ask one or two. I think you have to come back and ask it multiple ways. And what I like to do is ask a series of questions, get some testimony, and then move on, and then I come back and ask some more ways. And then I move on and I come back again. So especially if I'm not getting exactly what I think they know about something, so there's, ways of circling back. The hard part about taking a good deposition is remembering all those things that you so you have an outline. You're gonna circle it, make notes in the margin, and at the breaks, you're gonna go through your outline and double check that I did I get answers to all of these questions. I'm notoriously bad at taking notes during the deposition, so I'm really relying on my ability to just remember and circle the points that I feel like I need to return to. So there we had a colleague when she actually introduced me to the court when I was sworn in, and her depots were masterful because she could clearly had her outline. And when she would get that, you know, golden ticket of an answer, knew how to follow-up and ask specific questions about the answer that just came in and then go back to the outline. I've seen lawyers do the exact opposite of they get this amazing answer, and then they just keep on going on the outline and they don't do any follow-up. And that's just skill, that's listening, and that's also realizing what just happened. So, now, Edmund Miller has a question that he posed to us about how do you handle an opposing party witness who tells a fulsome version of the facts at trial, but many pertinent facts were largely admitted to in response to questions during the, pretrial deposition. I I would go for the inconsistencies for impeachment. You know, Kathy, how would you approach that? Well, I think I think that's where I was going with that. The, you know, going through the opportunities they had to share that information and then elected to either have a amnesia or, you know, didn't know, but you have to ask all the right questions. And you have to keep at them, and and ask it multiple different ways in a deposition to try and avoid that from happening. But it becomes a credibility question at that point in in cross examination to go through the opportunities that they had to share, those details and did not. I think, you know, if you are and I love the story you just told Josh about, you know, you can't get married to your outline. Your outline is a tool. It's a starting point, but you're in a, like, a very unpredictable process suddenly where that line is a guide to to kinda begin, but you have to listen to your witness. And you're gonna develop, ideally, some kind of a rapport, with that person, and they're gonna take you on many different tangents. And sometimes, and I've had, the experience of the witness who is so keen on the tangent, it's a tactic to distract you from the question. So that's the part about making sure you, you know, you exhaust that tangent, ask all those appropriate questions to kind of find out maybe something you didn't know you didn't know to ask. Now suddenly you're learning for the first time some important information. You wanna exhaust that line of questions, but you gotta come back and, like, close the loop on your outline. And and it's not gonna be perfect. But being flexible in that process is is really key. Flexible and curious, and remember that the outline is a guide. It's you you can't just read from it. You've gotta engage. Yeah. I had a incident once where I asked the usual preamble, have you had any alcoholic beverages in the past twenty four hours? And I've always prepped my people. Don't have, you know, you know, bottomless mimosas the day before a deposition. And and this witness said, yes. And it's like, that had never happened before. And it's like so it's questions about, what did you have? It's like, I had a beer with dinner. Okay. Like, we can, you know, move on as opposed to it had been, like, more extreme. Like, those would have been different questions to have had about, can you give your best testimony today? Now we've talked about different types of exhibits. I just wanna highlight there are spreadsheets, there's email, there's video, there's text messages. There's all kinds of modern exhibits that are out there, and it can be case specific. It can be practice area specific. So just think in those terms of, like, how we live is what ends up being litigated. So think in those terms of, like, what weird things can happen. Now let's cross into we're we're in the last 10. If you got questions, ask. But we're gonna get into the fun for all the evidence nerds out there, and that's objections. And so just a, you know, quick highlight in the, you know, courts, especially federal, you have to state an objection concisely in a nonargumentative manner and nonsuggestive. So you just say objection calls for attorney client communications, and you're done. Others get more rambunctious, and and that happens because some people are just dramatic. There are multiple types of objections that can happen out there and, you know, federal court in California, very similar, different in some areas. And it you know, there are 50 states and several US territories, so there can be variation. Kathy, can you walk us through, you know, the type of objections that you've seen and when it's okay to say don't answer that question? Yeah. Sure. I think, so it's, you know, you're on the receiving end of these objections as you're taking the deposition. It's important to know the difference between when you should maybe rephrase your question if it really is not a good question, because that will affect your ability to use that testimony at trial. So a question like, you know, vague and ambiguous as to time, that's probably something you wanna narrow. You do want the witness to understand the time period that you're asking about because if you're if you get some kind of a golden sound bite that sounds fantastic, and then you realize at trial that you didn't narrow it to the time frame that you really weren't interested in, then now that's not really such a golden sound bite. So I think some of the objections as to the form of the question, you can move past them. The the witness can just answer anyway, but you might wanna think about how you phrase that question or maybe ask a follow-up question to it if if there's some merit to it. You know, we're not asking perfect questions. I'm I'm I ask sometimes the worst questions and because I, you know, I'm thinking so fast and it comes out kinda garbled and I don't intend that, then maybe nobody understands what I'm asking, which means when it gets read back at trial, you're gonna, like, regret that. So you wanna make sure you've got, you're you're also listening to those objections and responding to them. However, if somebody's really you know, I I do, you know, use this sometimes, you know, for a witness who's being deposed. If if I'm objecting like objection compound, I'm signaling there's something wrong with that question. They're really asking you two things at once. And so the you know, answer if you can. Like, that that is, you know, if I'm making the objection, keep going. You don't wanna interrupt the flow. You don't wanna be obnoxious about it, but you do wanna signal that there's a problem with the question, and and and, you know, maybe the witness wants to take a breath and and ask for clarification before they answer. For other objections so, like, all I would say all of those objections down to the very last one except for the privilege. If you're receiving those objections and you think it's just a way to, interfere with your deposition, that's okay. Go ahead, you know, to the witness. They you can just ignore that person who's objecting. They've stated it for the record. They can, you know, reraise it at trial. Most of those objections don't need to be made, during the the deposition. Really, there's very few that a lawyer can interpose, that merits instructing the witness not to answer, and that's, you know, obviously attorney client privilege, work product, if there's a protective order issue, privacy rights of third parties, or if maybe they've signed a nondisclosure agreement and so you need to discuss protective order measures. But other than that, it's a it's a free game and and the sometimes lawyers shouldn't, but do use objections to sort of stop your flow, especially if they have a witness that's talking more than they should. They're good lawyers don't get stuck into the quagmire of I'm just gonna throw a monkey wrench into this. Like, they just don't. I was always careful not to ask or throw out too many objections unless it was just truly, like, off the wall, type of thing. Like, case where I was friendly with opposing counsel, He tried asking a question, and it was a word salad. And I went objection, unintelligible. And his reaction was, yeah. That was bad. I'm sorry. Let me try that again. And, like so, again, it's not a fight to the death. Like, sometimes people are mean in depots, and other times, everyone's just trying to do their job and representing their clients to the best of their ability because there's a dispute, and this is how we resolve disputes as opposed to just slugging it out. And so, again, lots of ways that this can can be approached. Now you raised some of the issues with, privilege and instructing people not to answer. Any any tips on that from from, your slides here? So I think you have to be thoughtful about, you know, who your witness is, you know, to the extent that, you know, I some clients don't totally understand that, you know, things that you've talked about in the case, you know, is privileged and they shouldn't my lawyer told me that this you know, don't say that. You wanna make sure you protect the privilege. The form objections are, you know, they're they need to be cured at the time. Otherwise, you're gonna be left with this weird vague answer to a question that's not clear. I think the the the challenge with, folks who abuse objections, you know, explaining why my position's wrong, resummarizing and restating my question, you know, embedding the answer in the objection. Those are really improper. And if, and I call out lawyers on doing that and and threaten to suspend the deposition if they won't knock it off. You know, and and I I can be a little sassy. So I can say, you know, if you need to take a break and talk about how this witness needs to testify, please do that. But don't tell them during my you know, while my question's hanging how to answer it. So I think that, you know, just really depends on holding your ground during the deposition. Usually, it means you've struck a nerve and you're questioning or the witness has gotten off track with their, testifying. They're giving you a little more than they were instructed to. I think where somebody's really, you know, off the rails. You don't wanna be unreasonably annoying with your questions. It needs to be relevant to the case. You know, family law, we get sometimes people wanna get into really icky things. Sometimes it's relevant, but usually it's not. And so, you can suspend and seek a protective order, if if or or seek a motion to compel if you need to to push for, you know, answers to the questions. Usually, I'll finish the depo and save that piece out, and then you make your motion after. So you do all the stuff you need to do, and you kinda carve out that one area that you're having trouble getting through. Yeah. Or if the you do get into an area covered by a protective order like someone's tax information, you can say, like, this is gonna be designated confidential when the court reporter then takes action. So we're we're down to the last minute here, but I just wanted to highlight first thank you, Kathy. Thank you, everyone who's tuned in. And with any case, you can have scheduling orders that impact the number of depots you can have, time limits. Like, there's lots of civil procedure and orders that can play into, you know, be a factor in your case. So with that, we're just about to wrap up, so I'll ask JQ to come back online and just wanna thank everyone. That was awesome. Thank you so much for your time today. Thank you, Kathy, for joining us. This was a lot of fun. I loved hearing about this. There was a lot of fun preparing for this conversation too, so it's great. Thank you all for everyone for joining us today. As I said at the beginning, just in case you missed it, you can download some of these resources like the PowerPoint we went over today, a great resource worksheet that Kathy put together, as well as a couple of, small resources and blogs and things for yourself. So feel free to grab those in the docs tab right on the side. You can also feel free I'm gonna push out a, a survey here that I would love you guys to fill out if you have the time. This is just kind of because it asks you a little bit more about what you like today, if there's anything you want to hear in the future, and then finally this webinar was recorded so if you have any things that you want to go back and rewatch or grab little tidbits from, you should get an email tomorrow with the same information, the same link. It will be the same link that you're viewing today, but it'll wait take about a day in order to process. So thank you guys all so much, and thank you for joining us. Join us next time. Thanks so much. Bye.