Ran across this helpful blog for taking telephonic depositions by Kramm Court Reporters that I wanted to share with you.
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Everyone is looking for opportunities to save costs these days in litigation. Many attorneys are choosing to take depositions telephonically so as to incur travel costs and to save travel time. Here are some ideas on how to make the telephonic deposition go smoothly.
The final installment from George Ellard of The Veen Firm on how to cross-examine a witness to impair their credibility.
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The third in a series of four blogs from George Ellard from The Veen Firm on how to cross-examine a witness to impair their credibility.
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Impeachment by character evidence is the use of a personal trait to impair credibility. There are essentially four methods to impeach using character evidence: defects in perception, defects in recollection, felony convictions and past misconduct.
The second of four blogs on how to cross-examine a witness to impair their credibility from George Ellard of the The Veen Firm.
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Perhaps the most effective and most frequently used form of impairing credibility is proof of a statement or conduct by the witness that is inconsistent with the trial testimony. (Ev. C. § 780(h) (pdf)) The inconsistency need not be a complete contradiction. The test is whether the prior statement is inconsistent in effect with the trial testimony. People v. Spencer (1969) 71 Cal.2d 933 (pdf), 941.
George Ellard from The Veen Firm brings the first of four blogs on how to cross-examine a witness to impair their credibility.
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Cross-examination goals essentially boil down to 1) developing facts which support your case, 2) harm the defense case and 3) impair credibility. You must carefully analyze the first two goals before you decide to impair the credibility of a witness.
In the spirit of my most recent blog, "OBJECTION!! There’s this case that says . . . ", here is a list of proper and improper objections to deposition questions that you should also keep in the back of your legal pad.
OBJECTIONS TO DEPOSITION QUESTIONS
Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)).
Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf); Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.
Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer. This is a form of "coaching" the witness and a protective order may need to be sought. See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100.
Have you ever been in a middle of a deposition and found yourself saying "OBJECTION!! There’s this case that says . . . " but you can’t quite remember what the name was, where you saw it or even where you might find it? And, yet, it is right on point. Well, the following is a list of cases and statutes for depositions that you should keep in the back of your legal pad as they may come in handy.
You are within fifty days of trial and you are in receipt of defendant’s expert witness disclosure. She has three experts and you have three experts. All six of them need to be deposed in less than 35 days and you haven’t yet sent out a deposition notice. You pick up the phone and meet and confer with opposing counsel to select dates. During the conversation the attorney for the defendant states very adamantly
My expert will not be ready to testify until your expert testifies. Besides you are the plaintiff and you have to go first!
Heard this before? I have and there are some significant problems with defense counsel’s position.
Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery--Charts for the Everyday Litigator " (pdf) was recently updated and now available to you for download.
Hope it helps!!
Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.” If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection. But what exactly is relevancy? It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?
Nine years ago, in the middle of a Deposition, defense counsel called plaintiff counsel a "Bitch." Plaintiff counsel immediately filed a motion for a Discovery Referee and I was appointed. The court ordered that I sit in on all the depositions and attend the site inspection. All communication including the scheduling of discovery was to be done through me.
When I look back on this case, I realize that the moment defense counsel used the word "Bitch" it became the turning point of the case. These two well-respected attorneys’ hostility toward one another drove the case. There were no more professional courtesies and the parties took extreme positions in their settlement negotiations. The case eventually went through a lengthy bench trial and appeal process that lasted years before plaintiff recovered an eight-figure judgement.
A few months back I received an e-mail from a court reporter regarding a very unpleasant incident that occurred in a deposition. It went like this:
So...during questioning the attorneys were apparently getting to a very sensitive area of inquiry -- and [Attorney #1] had already argued with all of the other attorneys -- so, he stared me straight in the eye and said, "God damn it, when you're asked to read a question back, you don't just read a question, you read the answer also, do you hear me? Now I've got to object and say it's asked and answered when if you would just do your fucking job I wouldn't have to do so. When it happens again, you better read it the right way."
Katherine Gallo is a renowned expert in complex discovery issues, having developed a reputation with her extensive discovery seminars, in-house discovery...
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