4th edition Nolo’s Deposition Handbook by Attorneys Paul Bergman & Albert J. Moore Nolo’s Legal Updater We’ll send you an email whenever a new edition of this book is published! Sign up at www.nolo.com/legalupdater. Updates @ Nolo.com Check www.nolo.com/update to nd recent changes in the law that affect the current edition of your book. Nolo Customer Service To make sure that this edition of the book is the most recent one, call us at 800-728-3555 and ask one of our friendly customer service representatives. Or nd out at www.nolo.com. The law changes, but Nolo is on top of it! We offer several ways to make sure you and your Nolo products are up to date: always up to date 2 1 3 We believe accurate, plain-English legal information should help you solve many of your own legal problems. But this text is not a substitute for personalized advice from a knowledgeable lawyer. If you want the help of a trained professional—and we’ll always point out situations in which we think that’s a good idea—consult an attorney licensed to practice in your state. please note 4th edition Nolo’s Deposition Handbook by Attorneys Paul Bergman & Albert J. Moore FOURTH EDITION MAY 2007 Editor EMI LY DOSKOW Cover Photography TONYA PERME (www.tonyaperme.com) Production JES SICA STERLING Proofreading RO BERT WELLS Index NAN CY BALL Printing D ELTA PRINTING SOLUTIONS, INC. Bergman, Paul, 1943- Nolo’s deposition handbook / by Paul Bergman & Albert J. Moore 4th ed. p. cm. Includes index. ISBN-13: 978-1-4133-0626-2 (alk. paper) ISBN-10: 1-4133-0626-8 (alk. paper) 1. Depositions United States Popular works. 2. Discovery (Law) United States Popular works. I. Moore, Albert J. II. Nolo (Firm) III. Title. IV. Title: Deposition handbook. KF8900.B44 2007 347.73'72 dc22 2005040657 Copyright © 1999, 2001, 2005, and 2007 b y Paul Bergman and Albert J. Moore. AL L RIGHTS RESERVED. 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Dedication To all the nonlawyers who seek to understand the civil justice system and to use it to vindicate their legal rights. —PB, AJM Acknowledgments We are grateful to Jake Warner and Steve Elias, who established and have continued a tradition of excellence at Nolo and who pushed us (occasionally painfully!) to produce a book that might be consistent with that tradition. ank y ou also to Lulu Cornell and all the Nolo employees for using their design and production skills on our behalf. ank y ou to David Binder (our esteemed UCLA law school colleague) and Sherrill Johnson, excellent lawyers whose wisdom and years of deposition practice are reflected throughout the book. ank you to excellent UCLA law librarians June Kim and Alice Ko for their extensive research help on the Federal Rules of Civil Procedure and their state counter parts. —PB, AJM Table of Contents Introduction: Your Deposition Companion Part One: Being Deposed 3 Part Two: Taking and Defending Depositions 4 The Federal Rules of Civil Procedure (FRCP) 5 Finding the Deposition Rules That Apply to You 5 Local Rules 6 Part One 1 An Overview of Deposition Procedures Depositions in a Nutshell 11 Providing Notice of a Deposition 11 Deposition Scheduling Requirements 13 Rescheduling Your Deposition 14 Avoiding a Deposition Altogether 16 Duration of Depositions 16 Deposition Attendees 17 Document Production at Depositions 23 Reviewing and Signing Your Deposition 24 2 Using Depositions in a Lawsuit Using Depositions Before a Trial 26 Using Depositions in a Trial 31 3 Preparing to Give Deposition Testimony Parties Represented by Attorneys 38 Parties Representing Themselves 40 Nonparty Witnesses 53 4 Responding to Questions The Golden Rules for Responding to Questions 59 Responding to Common Questions 64 Responding to Trick Questions 66 Responding to Requests for Future Action 77 Finishing Interrupted Answers 79 Handling Fatigue 80 Objections 82 Reviewing and Signing Your Deposition 83 5 Beginning a Deposition: “e Usual Admonitions” Admonitions Defined 86 Purposes of Admonitions 87 Admonitions: Examples and Explanations 87 6 Background Questions Hidden Agendas 96 Legitimacy of Background Questions 98 Your Employment History 99 Your Educational Background 101 Other Background Topics 103 7 Questions You Can Legally Refuse to Answer Privileged Communications 106 The Work Product Privilege 113 Evidence of Criminal Activity 115 Private Information 117 [...]... 11 Types of Deposition Notices .11 Significance of a Deposition Notice 12 Contents of a Deposition Notice 12 Deposition Scheduling Requirements 13 Travel Requirements .13 Length of Advance Notice 13 Witness Fees .13 Rescheduling Your Deposition 14 Avoiding a Deposition Altogether .16 Duration of Depositions... Document Production at Depositions .23 Reviewing and Signing Your Deposition 24 chapter 1 | An Overview of Deposition Procedures | 11 T his chapter is about deposition procedures Unless you have had your deposition taken, these procedures will likely be unfamiliar: Most depositions take place in private conference rooms rather than in public courtrooms (You may have seen depositions depicted... Expert and Nonexpert Witnesses 122 Predeposition Disclosures 128 Typical Predeposition Involvement 129 The Importance of Thorough Deposition Preparation 132 The Predeposition Planning Meeting 134 Typical Deposition Questioning 135 Part Two 9 The Lay of the Discovery Landscape 10 Defending a Deposition The Purposes of Discovery ... up at the deposition, and they’re required for nonparties 12 | Nolo’s Deposition Handbook If you’re a party, your adversary will provide you a more basic form of notice by mailing you (or your attorney, if you have one) what is usually called a “Notice of Deposition. ” (See Sample Form #4 in Appendix C.) No subpoena is necessary to require a party to attend a deposition Significance of a Deposition. .. is being sued and you receive a deposition notice, you may be able to secure legal representation at 22 | Nolo’s Deposition Handbook the deposition without paying for it yourself Advise your supervisor or your employer’s in-house legal counsel that you’ve received a Subpoena re Deposition and that you’d like the employer to provide you with legal representation at the deposition Although the employer... Effective Videotaped Deposition 267 Defending a Videotaped Deposition 269 G Glossary A Appendix A: Excerpts from the Federal Rules of Civil Procedure (FRCP) B Appendix B: State Discovery and Deposition Rules C Appendix C: Sample Forms Index i n t r o d u ct i o n Your Deposition Companion Part One: Being Deposed 3 Part Two: Taking and Defending Depositions ... describes how depositions are organized, how you might be able to alter the arrangements if necessary, and what role each person at the deposition will play Moreover, because the overwhelming percentage of cases settle prior to trial, your deposition may be your only chance to testify Thus, lawyers often prepare as carefully for depositions as for trial And because what is said at a deposition can... dispute, deponents should be as careful and as accurate in giving deposition testimony as they would be in testifying in a courtroom at trial Depositions in a Nutshell A deposing party (a party planning to take a deposition) has to give you advance written notice of the deposition s time and place This section explains these notice procedures A deposition normally consists of a lawyer (or a self-represented... during depositions (see Chapter 4) • what to do if the deposing lawyer is verbally abusive (see Chapter 4) • what warnings you’ll probably be given at the beginning of the deposition (see Chapter 5), and • if you’re an expert witness, what your role will be in the process before trial and what types of questions you’re likely to be asked at deposition (see Chapter 8) | Nolo’s Deposition Handbook. .. Subpoena re Deposition, you can be held in “contempt of court” (in violation of a court order) and a bench warrant can be issued for your arrest And if a judge finds you to be in contempt of court, you may be ordered to pay a chunky fine Contents of a Deposition Notice Whether you receive a Notice of Deposition or a Subpoena re Deposition, the document will indicate the place and time of your deposition . Overview of Deposition Procedures Depositions in a Nutshell 11 Providing Notice of a Deposition 11 Deposition Scheduling Requirements 13 Rescheduling Your Deposition 14 Avoiding a Deposition Altogether. 16 Duration of Depositions 16 Deposition Attendees 17 Document Production at Depositions 23 Reviewing and Signing Your Deposition 24 2 Using Depositions in a Lawsuit Using Depositions Before. Witnesses 122 Predeposition Disclosures 128 Typical Predeposition Involvement 129 The Importance of Thorough Deposition Preparation 132 The Predeposition Planning Meeting 134 Typical Deposition Questioning