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Deposition Strategies: Honing In Techniques Effective In Person And In Remote Depositions

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Deposition Strategies: Honing In Techniques Effective In Person And In Remote Depositions

Remote depositions are here to stay and they require planning unlike conventional depositions. Justin Blitz will discuss issues related to taking and defending virtual depositions in personal injury cases. The course will discuss what should go into the planning of remote depositions, how to ask questions effectively in a remote environment, how to strategically use exhibits remotely, when to object (or not object!) to a question your client is asked, when it makes sense to not conduct a deposition, and the advantages of video depositions. Mr. Biltz will also address how to prepare your witness and how to adapt the art of non-party depositions to a virtual setting.


Justin Blitz
Founding Partner
Schulman Blitz, LLP.


Justin Blitz: Hi, my name is Justin Blitz, I'm an attorney in New York City. And I'm going to be spending the next hour talking to you about depositions, strategies for depositions, using various techniques to make your deposition more effective. We're going to be talking about strategies, that one could use for in-person depositions and for remote depositions. Just a little bit about myself, I'm a attorney in New York City. I have a law firm where we practice medical malpractice and plaintiff's personal injury.

I'm going to be speaking from the perspective of the plaintiff's practitioner. It's what I do 95% of the work that I do, and I'm also going to be speaking from the perspective of from a personal injury or medical malpractice or wrongful death type lawsuit. The techniques that I'm going to be discussing really are intended for those types of cases. If you have a contract case or a discrimination case, I would give you pause as to moving forward with some of the strategies that we're going to be discussing, because that's not what I do and these are techniques that I have really been developing for many years in the personal injury perspective.

So also the last caveat that I'd like to give you is, well, two more things. First of all, this is intended for a national audience. I am a New York practitioner. And if you are going to utilize some of the strategies and techniques that we discussed today, I would encourage you just to make sure that you check your local rules and ordinances, to make sure that anything that we would be discussing is not going to be in conflict with any local rules. The other caveat is this is a national intention to give people all across the country assistance on depositions. But again, check your local state if you're not in New York just to make sure that some of the issues that we discuss today, again, will not be in conflict.

So the first thing that I want to get into about depositions is the procedural context, the timing and the other procedural requirements will vary amongst the different state laws. In New York the timing of the depositions are guided by New York CPLR3107. For example, in California, it would be the Code of Civil Procedure 2025.210(a). And the timing is always going to be subject to local rules and state law provisions. CPLR3107 in New York requires you to give each party and the deponent at least 20 days notice prior to setting up the deposition.

What typically occurs in my practice is after the answer is received and the discovery demands are responded to and our discovery demands are drafted and sent out, what typically happens in New York practice is you would file a RJI a Request for Judicial Intervention, a request for a preliminary conference, and the court would then issue a preliminary conference order where it would set up the times and dates of the depositions.

And if they were on or before dates, not definite dates set in stone on the order, we would then get up on the phone and get with opposing counsel and get a date that was on the calendar and scheduled. And that's typically, the plaintiff obviously would go first and then the defendant, and of course you have the potential for non-party depositions as well that you want to consider. You really need to have the knowledge and skill, knowledge in regards to the law, and knowledge in regards to the particular case, to abide by the ABA Model Rules of Professional Conduct when you're conducting depositions.

So as we are all living through a pandemic based world, if you're a practitioner, you know that a lot of depositions across the country have now been done via remote, whether it's Zoom or another different video deposition software reporting company that provides it. The notice of the deposition by video in most states is required to send out to the opposing party prior to the deposition. And you would need to check your local state law as to the timing.

As I just mentioned New York the notice is 20 days. You should provide the notice of the video conference deposition, put on the notice the conferencing software that's going to be used. Make sure it's clear, the video deposition conference will be recorded. The notice should also state that a simultaneous stenographic transcription of the testimony will also be made. In other words, you're going to have a court reporter there too. You're not just going to be relying solely on the video.

If the notice was originally served without any of that appropriate language, an amended or supplemental notice should be served as soon as possible and within a reasonable time prior to the deposition. Listen, if you run out of time and you have to change any of the information on the deposition, I'd recommend getting on the phone with your opposing counsel, getting a stipulation, or at the last alternative seeking an order from the court. Where the depositions are held New York, the CPLR provides that it's within the county where the party resides, or within the county where the party has an office for regular transaction of business, or within the county where the action is pending.

I am not comfortable typically doing the plaintiff's deposition in the defendant's office. I would like for my plaintiff to be as most comfortable and in the most comfortable environment as possible. And I don't think that the defendant's office, no matter how nice and fancy it may be, is going to offer the environment that I am seeking for my plaintiff to be most comfortable and relaxed during her deposition or his deposition.

I'm okay with it, doing it in my office. I'm okay with defendants deposing my client via Zoom and not in person. If possible I would like to be in the same room with my plaintiff, even though the defendant's attorney may not be there and might be doing it remotely. If my plaintiff is comfortable with it, I would like to be in the same room with her. I think it would be advantageous for me while I am defending the deposition.

And it allows me to get a sense and feel of her body language, her energy, if I need to take any breaks. If I think that things are going a little aside because she's getting anxious or nervous, and I want to just encourage her with any thoughts. It's going to be a lot easier for me to get a read on how the plaintiff is doing while I'm in the same room with him or her. As far as the defendant's deposition, I have learned through this pandemic that I actually tend to appreciate the remote version of the defendant's deposition. I'll tell you why for a number of reasons.

Firstly, I do it from my office, at my desk. I'm able to really spread my papers out as best as I think is necessary without having prying eyes of defense counsel all over me, not allowing... And maybe I'm paranoid, but I've always tended to believe that defense counsel, they're looking at an outline or they're seeing the papers that are in front of me, it's going to provide a roadmap of the questions that I'm going to be asking. And it just makes me uncomfortable, this way I can spread everything out the way I want to.

I don't have to worry about anybody reaching over me and looking over me and seeing where I'm going with the questions. The ability to share your screen and use certain documents, that I want the witness to allude to when testifying. I feel that the ability to... If you prepare them properly I take record for example and use the highlighted version, the highlight aspect of Adobe, and you highlight the certain areas of the record that you want the witness to refer to when testifying, and then you share your screen while the witness is testifying. I've found it to be a much more effective way to get everybody on the deposition, without any choice to focus exactly on the words or phrases or document a record that I want them to.

And I've found it to be more effective than actually being in a small court reporting room, and handing my document that I want to mark as an exhibit and have the witness refer to, and asking them to take a look at it and read it and then I'd ask them questions. This way it's shared on the screen and it's the only document that's on the screen. And everybody doesn't have a choice, they have to look exactly where I want them to look. So I have found the remote deposition of the defendant to be a little bit beneficial for me so far. The scope of the deposition, the deposition is an oral examination. I tell my clients all the time in preparation for the exam, this is a oral examination based on what they recall, their knowledge on the day of the deposition. If they don't know something, that's okay.

If they have something else in their possession that might provide an answer to a question, it's okay if they don't have the answer there and under no circumstances should they take anything out of their pockets or their phone, or their wallets, or pull out a card. If you don't have the information in the top of your head when asked the question, you can always leave a space in the transcript to fill it out at another time. From the federal side, the scope of the deposition is governed by Federal Rule of Civil Procedure 30.

And the scope itself of the deposition would be covered by Federal Rule of Civil Procedure 26(b)(1). Federal Rules which New York has recently adapted and many states do adapt, allow for at the maximum 10 depositions per case. Each deposition should be no longer than seven hours in length, it's new that the of New York has adopted the Federal Rules. And that seven hour maximum limitation of time I think is really helpful.

I've had cases where defense attorneys have kept my client for two, three days of depositions. And for many years, if I had the advantage of no more than seven hours where they can torture, sorry, I mean, question my client, then I think it would've been very, very effective and much more time consuming. And it forces the attorney to start getting serious with their questions, and not go so far out of the scope into other areas that are totally probably irrelevant, and makes it just more time consuming and time efficient.

The scope of inquiry during depositions is just as broad, but no broader than every other type of discovery device that's actually written in the Federal Rules. Doesn't really make a lot of sense, but what you basically need to know is there's a very, very, very, very broad scope. There's not a lot of things that are so improper that they would be not allowed to ask. Of course, if it's attorney client privilege or if it's protected through any other confidence or product so forth and so on, you must be adamant and make sure that your client does not answer anything that would jeopardize or breach their confidence, and the confidentiality that you should be taking very, very seriously.

Another limitation in regards to the scope of the deposition and the line of questioning, is that the deposition question should never be intended to harass or intimidate. And if that's the case you certainly as the attorney defending the deposition would want to object to any questions, and mark those for a ruling and stop the deposition then and there before it goes to a place that would be putting your client in a very, very uncomfortable position.

There is the possibility and it has happened in many of my cases where you can waive the deposition, where in some circumstances it might not be in your interest to do the deposition. For example, we tend to postpone a deposition on auto cases where there's the potential that we're going to make motion for summary judgment as to liability, and rather than having the plaintiff answer questions in regards to how an incident occurred, we'll make the motion as to liability if it's something that we think is clear cut and the court would grant it.

And then once it's granted what we would do is we would then do the deposition of the plaintiff, but it would be limited solely as the damages because liability has already been determined. And therefore the plaintiff doesn't have to say anything that could potentially hurt their credibility or hurt their rights later on down the road. And the deposition becomes a much more limited procedure, which should be one of your intentions as a plaintiff's attorney to limit the scope and narrow the focus of the deposition, and the questions that the defendant's attorney would be entitled to answer.

So some of the pros advantages for conducting a deposition, certainly you would be able to assess the witness's credibility, demeanor, likability, jury appeal, all very, very, very important things. It's almost a preview of the movie before the movie starts, which allows you to then engage your trial strategy down the road on the case.

If you ask your questions right and you prepare properly, you should leave the deposition of the opposing party with a lot of inconsistent statements that you can later use to impeach at trial. It's important when you ask your questions to ask your questions in a way, where the goal of the deposition is to pin pinpoint the witness to answers. You want answers, all kinds of answers, you want yeses or nos, and if they can't give it then approximate the second question, "How fast were you traveling? 'I don't know, sir.' Okay. Well, was it over 10 miles an hour, 20 miles per hour, 50 miles per hour, a 100 miles per hour or something else?"

That's the next question, the follow up is to try... you're wanting to get answers. And if they don't know the answer to the second question then they look foolish. Because if you don't know that you're going either over a 100 miles per hour or 10 miles per hour, then you are losing credibility. But most likely they're going to give you an answer to one of those 10, 20, 50, or a 100 and then you go even a little bit further. Let's say they say it was under 50 miles per hour, "Okay, good. Was it under 10? Was it under 20? Was it under 30? Was it under 40?" Let's keep pinning them down and it's okay. And remind them that they can approximate and remind them that their answer should be, if they're going to know approximate should be approximately that they don't have to be precise or specific.

That us as humans are not robots, we don't have crystal balls that we can go look back on, so just the goal is to give answers. Another advantage to conducting the deposition is it'll discover details of a party's claim or how much knowledge the witness recalls or doesn't recall. And then you can also use the deposition to gain helpful admissions, things once you pin down those answers, there's going to be things that will be helpful for you, if you phrase the questions properly. You will learn bad facts about your case, that's true.

Because there might be a recollection of a witness during a deposition, that you wouldn't know they're going to say until they actually say it. And it's important to flush all of that out before you into trial. Narrow the issues, obtain potential settlement leverage, preserve helpful testimony. Preserve testimony is a key one, especially in many circumstances, I have non-party witnesses who I want to pin down their testimony. And at the time of trial, listen, trials take long time to get up to a trial in the state of New York, sometimes two, three, four years.

And that witness might not be around at the time of trial. And you want to make sure that you're preserving their testimony. So you get the deposition of them and then come trial they're no longer around. And then you show the court the efforts that you made to try to procure the witness, to come into the courthouse. And when you've satisfied your burden, that the witness is no longer available. You get to use the non-party witness' deposition as if the party was there at trial, and it becomes a very effective tool because the other side can no longer have the benefit of cross examining them in a live setting in front of the jury and hurting their credibility.

Their answers are there and you get to use their deposition and it becomes a big advantage. The video deposition, so as we discussed the notice, the actual notice to conduct the video deposition in New York is governed by the New York City rules and regulations, it's actually 22 NYCRR 202.15. And it does say that in New York, you must provide your adversary in advance with notice that you intend to videotape a deposition or you may be prevented from doing so.

A video certainly will capture things that a transcript alone cannot. As we discussed body facial recognition, facial expressions. And again we discussed if the chance that the witness would not be available at the time of trial, this preserves the testimony, let's talk about the remote deposition. The remote deposition from the Federal Rules is guided by Federal Rule 30 (b)(4).

That's where the court has authorized the use of the remote deposition by video conference. And it discusses the potential issues that the video deposition would bring about. Rule 30 must include and this is the notice, notice the video deposition pursuant to rule 30. It must include the location city and state from where the witness, the court reporter and the videographer will attend. The company that will host and record the remote deposition and a general description of how those attending may access the remote connection being utilized.

I would make that 30 (b) notice as clear and as specifically tailored to those instructions as you can. It used to be as we all know the common practice of putting a bunch of lawyers into a small room, and unfortunately, due to the pandemic, that's no longer going to be possible because of safety reasons.

Couple of issues with the remote deposition that you want to make sure you've taken care of prior to beginning, make sure your technology is okay and all set up. You want to position your camera so you can be seen clearly, you want to make sure that there's good lighting. I would dress professionally as if you were in the courthouse or as if you were conducting the deposition in person. I would ask the witness to verify that they can see and hear you prior to you beginning.

And inform the witness when you're giving your preliminary instructions, that should there be any time where they no longer can hear or see you, to immediately speak up and you so that you can fix that. Have the witness agree to report any issues immediately if they arise, and that's basically not only just technology or anything else that can come about. We discussed some of the advantages of the remote deposition, the ability to maximize your value of your case and the ability to take the record and make it the sole focus, is always going to be key and can only be done with very, very intensive preparation for the deposition in advance.

Preparation for your deposition remotely or otherwise is not only going to include writing your questions or getting your exhibits ready. But if you're going to be defending the deposition and it's your witness, you need to set up the preparation for your witness in a very strategic way. I do not believe that you can have an effective prep session with a witness who's being deposed in just one setting. I tend to set up three separate sessions and I never will leave it to the night before, or most importantly never leave it until the morning of because you're just setting yourself up for disaster, if you wait till the right last minute to prep your witness.

So let's discuss the preparation of the witness for the deposition. Session one I like to call the confidence building session. I like to instill in the client that and this is a technique that I took from one of the greats, that you want to ensure that the client understands that any time that they're feeling nervous or anxious during the deposition, that we have the most important thing on our side which is the truth.

And that if they just stick to the truth, that we are golden. And you really want to build confidence that the plaintiff is, has a legitimate claim or else you would not have brought it. And that there's no reason for them to be nervous because we have the truth on our side. And I explain different potential breathing techniques, I explain the advantages of slowing down the tempo of the deposition, and I begin to start permeating into my witness' mind the theme of our case, and the theme of what we are claiming and small, not too intensive, but small beginnings of appropriate and most effective answers to questions that you're going to anticipate, they're going to be asked at the deposition.

Keep it light and you want them walking away from that first session feeling so much better about the procedure. Also, you want to spend a lot of time during that initial session just explaining the logistics, explaining the procedure, explaining the type of questions that you anticipate are going to be asked, explaining the format, it's potential and this is not always the case.

But they'll start off with biographical information that they're going to explore, your past history, your employment history, your educational background, your family background, and then they might move on to something like your employment history and get into details on that. And then discuss your medical history, and then they might get into the day of the incident, then they're going to discuss all of the damages. And you just want them to become familiar with the process because you as a practitioner, we need to keep in mind that this is a procedure and this is a procedure that they're not used to, that they don't know what to expect.

And that even though it's become so familiar to us as attorneys, it's not a typical conversation. And you need to make that understood and that you need to make them familiar, the more familiar they will be with the procedure and the format as to how the deposition is going to be conducted, the more comfortable they're going to be. And so when they get to your office for the second session, which the second session is really the meat and potatoes of what you're going to want to get out of the session and the prep, they're feeling so much better about the whole thing.

Before they went to your office on the first day, they were having trouble sleeping because they didn't know what to expect. But now that you got rid of the mystery and you built confidence that they have the truth behind them, and that no matter what, and if they were to ever get flustered or nervous or stressed during the exam, they constantly can resort back to the wonderful, wonderful feeling and notion that we have the truth behind us.

The second session is where we really get into questions that you are going to anticipate, the witnesses going to be asked, and then they give their answers and then you maybe help them give their answers in a more appropriate way, or in a way that will be more beneficial to them.

And you then go over it again and again and again, and then come the third session, which should be done at least a couple days prior to the deposition, ideally day or two before the deposition. You basically do a mini abridged version of session one, a mini abridged version of session two. And then you put on your big bad adversary hat, and you cross examine them in a way that you know when you are finished that they will never get as brutal, and as of tense of a cross examination than what you just prepared them for.

So that when they do get to a cross examination during the deposition, they are prepared and they are comfortable because they're sitting there saying in their head, "Boy, this is not nearly as hard as Mr. Blitz made me think it was going to be when he was doing his questions. This guy's a softy compared to Mr. Blitz." Then it will allow them to feel more comfortable, almost something will click in their brain during the deposition like, "Oh, well, I got this because I was able to handle everything that came before me and Mr. Blitz has prepared me, so I can answer these questions."

Three sessions, confidence building, meat and potatoes and then a bridged version of one and two followed by an intensive cross examination, that's how I prepare my witness for deposition. Okay. So we've prepped the witness, we're ready for the deposition. When you begin your deposition, whether it's remote or not, you are going to begin with your preliminary questions, usual stipulations are typical. I like to make sure that the instructions are very clear. I spend a good amount of time going over them, making sure that they understand them.

When you object, I typically don't object on the deposition unless it's for form. I will make other objections that I think are relevant questions or that are prejudicial questions just to preserve the record. I do make my objections, I just don't typically not allow my client to not answer a question, unless it really is something that calls for privilege or it would breach a confidential privilege. If things do get to a higher level of intensity and you and your counsel just simply can't agree on something that you are steadfast, belief should not be asked or answered, you can of course always call a judge to mark for a ruling.

Be prepared to deviate when you're asking questions from your outline, don't stick to your outline, the most important questions that you can ask during a deposition, come from the response to the initial question that you posed to the witness. What I tend to do is I will write preliminary outline with a number one important question. Number two, important question, number three important question, number four.

And then on number one important question, you might have a couple sub-questions that you want to make sure that you get out. Those subheaders might not even be actual questions, they might just be actual words that will trigger your brain, that you want to get out information in regards to that word.

But you got to be able to apply your listening skills during the deposition and that requires you not writing anything down, but actually listening to what the witness says in response to your question. And then you always want to make sure that you have at least two, sometimes three, sometimes four or five follow up questions in regards to that witness's answer. And that's done with pinpointing, pinning down, approximations, lowering, getting them down to getting an answer on the record, that's very, very important.

The follow up, you ask the question, there's a way to ask a question when you're almost saying it, it's almost a phrase or a fact that it's part of your argument. Like the defendant ran the red light is what you want to try to prove, right? And the question could just be, "Isn't it true that you ran the red light?" By adding the words isn't it true? It's okay.

The answer, "No, I didn't. No, no, no." But at least you're getting answers and then it's the follow up questions, "Isn't it true? You ran the red light. 'No, I didn't.' Okay. What color was the light? When did you see the light? How far were you from the light?" And then you pinned them down, "Were you 10 feet from the light 20 feet from the light? How many seconds were you before the light changed when you started to move? Was it one minute, two minutes, three minutes. Something else." Always don't forget to add in when you're doing your pin down questions, add in the, "Or something else?"

That's the way to ask the question properly by allowing the witness not just the options presented, but it could always be or something else. Another good tactic when asking questions during the deposition, is you can ask the witness to answer question if they can in a yes or no, and if they are unable to do so to let you know. And then when they say that they are unable to do so on a particular question, that's when you do the follow ups and the pin downs based on why they are unable to answer it in a yes or no format.

So approximations pinning down bulks of sequences of time, whether it's from 10 to 30, 40 to 60. Whatever it is that's a helpful way. And then what you do is you take their answer and you follow up with a more pin down or a narrowed down way. And you always make sure that you have already told the witness and you can constantly remind them, that if they don't understand any of your questions, you would rephrase the question. And you make sure that you tell your witness when you're preparing your witness for trial, that the questioner has an obligation to ask the questions in a format that you are able to understand.

And it is not up to the witness to try to decipher a question. If it's not clear and it's not just a very, very, very clear question, then you just tell your witness to say, "Please rephrase. I don't understand." Leading questions are okay. Keeping your questions short is very important. Also, you don't want long-winded questions that are compounded, first of all, they would be objected to for format.

But also more importantly, you're thinking about questions and answers that you're going to be able to use at deposition, at trial that are clear that go right to the point. You have a long-winded question with all sorts of words that are unnecessary in the question, it can be interpreted all sorts of different ways i.e. it could be also be argued that if they didn't understand the question, and it could be potentially objected to as being confusing and then you're not going to be able to use it at trial.

So it's important to keep your questions short and that's if you tend to use a lot of words when you're talking or writing, then writing out the question and then rewriting it in a less wordy format is a good tool to do prior to the deposition. Be specific avoid using pronouns, so that each question does not need a reference to another question. You want to be able to give a question and answer, spotlighted, standing alone, and not having to use two or three questions before to reference.

So when you ask, for example, it might be how fast was car C traveling and they answer it. And then you might ask two or three questions about car C or the driver of car C, and then you don't want to get back to saying something like, "Was it traveling recklessly?" Was it, no, because you're then having to go back three questions before to figure out what it is. So don't use pronouns, "Was car C traveling recklessly in your opinion," or something like that. The forgetful witness, witness issues that come up, if it's your witness and they just don't remember anything, you do your best to refresh their recollections during preparation.

And if it's important stuff that would make a potential motion to dismiss occur, because they don't recall certain, very relevant facts, like where they were at the time of the accident or something, then you really have to keep working to refresh their recollection, prior to the deposition during preparation. And if it's other instances where they just don't recall, many times plaintiffs have a tough time remembering specific dates of medical treatment because it's been so long, that's okay.

They're under no obligation to have to remember every specific date, for every specific treatment that occurred in three years, that's why the defendants get medical records. And if they don't recall then you instruct them to say, "I don't recall." You don't want them to guess and you certainly don't want them to make things up. And you just let them know that the answer I don't recall is a appropriately good and appropriately proper answer and you're okay with it.

And you would rather them say that than make something up in an attempt to asway the questionnaire. If you have an uncooperative witness and it's your witness and you're defending the deposition, you really need to then just take as many breaks as possible. And keep reminding them when you're with them privately, that they're going to ruin their case. And that their job is not to question the questionnaire and just to answer the questions, and that they need to have trust in you because that you know what you're doing, and that you're not going to allow anything that's going to hurt or harm them.

If you have a witness who talks too little many, many times I represent very severely injured... If it's a tough old construction worker, let's say a guy who thinks or a woman who thinks that you know that they're in tremendous pain and they have a severe injury, but they just weren't brought up to complain about themselves. And they just have a higher tolerance than pain than others. Then you're going to need to work extra hard to elicit what you need to get out from them during preparation.

And you have to remind them that this is their one and only time, where they're going to be able to recover money for the damages that they believe that they incurred, and that they're going to have to... This is not a typical conversation and this is not a social event. And this is not something where they don't have a choice that they chose to bring a lawsuit. And if you chose to bring a lawsuit, you're going to have to express your damages in a coherent, accurate, truthful manner. And if that goes against their human nature, then they're going to have to find something within them to change that for the deposition.

Difficult attorneys we discussed, under no circumstances do you want to lose your cool. You have a job to do, you need to remain focused, you stick to your outline. If you have a attorney, who's badgering, who's being uncooperative, you bust it up and you redo it. You get a judge, you make a ruling, you call the court, but you just under no circumstances do you want to get into a tit for tat with the other attorney.

Certain circumstances do call for it, if you need to sometimes approach fire with fire and let them know that you're not going to be taken advantage of, and their witness isn't going to be taken advantage of. You might want to just shut that down early on before it gets a little bit out of control, and the attorney gets some confidence that it's their show, because you always want to remember that it's not it's yours. The goal is to gain answers. The goal is to obtain specific testimony, make sure you're doing your necessary research when you're doing a defendant's deposition on the potential witness.

And I always have some sort of collateral damage, we all know there's no privacy anymore and everybody's got something in their background that you can potentially use to exploit them. And whether I use it or not, that will depend on the nature of the circumstances of the particular case. But many times I will have a folder of things that I could use to hurt them in collateral, whether it's prior lawsuits, prior testimony, something like that.

And I tend to save that stuff for the end of the deposition. I think that you get more out of somebody with honey than you do in an aggressive nature. I'd like to keep the deposition, it's already a confrontational adversarial procedure. But I tend to think that if the way you ask your questions and the tone of your voice, you can subconsciously or consciously have a witness lower their guard a little bit, when they don't think that they're being attacked and they don't become so defensive, and then they will give you more forthright answers that you can then use to your advantage later on.

You will always be better off with a witness that you're examining, who's got their guard down a little bit and thinks that you're not there to bury them in the sand. They will tend to be potentially a little bit more forthright and get out some things that will be helpful. Keep in mind your theme, keep in mind, have a plan, have a format of where you want to go on the deposition, I tend to go with things chronologically.

I tend to keep in mind that jurors don't sweat the details. If you have 47 records of treatment with the witness that you're about to depose, maybe you want to narrow it down to the top 10, 15, most germane and relevant ones. But all of this is going to require lots of preparation, so you know your case and you know your law. Do you have an expert on your case, if you do I would encourage you to meet with your expert prior to the deposition, and use your expert to provide you questions that he or she thinks they will need answers to in support of their testimony at trial.

I find it extremely beneficial to spend lots of time with my expert prior to the deposition of the defendant, and make sure that the expert has read everything that has gone forward since, whether it's records or other testimony. And then sit down with your expert and go through questions that you intend to ask the witness. And if they have suggestions of questions, make sure you get those down, but also make sure you have an understanding as to why the expert wants answers to those particular questions.

During the deposition make sure you provide complete copies of the exhibits to all who are attending it, include in the stipulation that the deposition will not begin until counsel are present. No one's permitted to communicate with the witness by any means, not recorded in the same manner, these are all Federal Rule 30(b)(5) things that I'm going over. The one about permitted to communicate, the one issue that I've discovered that you need to be wary of on remote depositions, is that the witness could have records in front of them that you've never seen.

And you don't know what is in front them and you need to take precautions about that and tell counsel, ask the counsel to go off the record. What is the witness referring to when he answered that question? I'd stop the deposition say, "I'd like a copy of that. I'd like a copy of all of the records that the witness has with him today, and that the witness is intending to reference during the course of the deposition." Get your copies, have them scanned an email to you.

And then print them out or whatever it is and review it and then you want to ask questions about those records. And then you want to make a note on the record that you reserve your right to question the witness further upon your review of the records that you had never seen before. You had properly requested them during discovery and that the witness brought with them that day.

And you continue with your deposition and you need to be prepared to ask questions on the fly so to speak, based on records that were just presented to you. But make sure you preserve your right for a further deposition, if that is the case where records are presented during the deposition by a witness remotely that you had never seen before. It's good to have a checklist before you get started. I've included in my slides for this deposition lecture various checklists, like positioning your webcam so you can be seen clearly facing a window, having a blank wall behind you, dress appropriately, asking the witness to verify, they see you and they can hear you. All of these things are important in terms of being prepared and ready to go and being most effective.

I also have some case law available should you come across an adversary who is giving a difficult time in regards to anything procedurally or context wise for the remote deposition. In my outline, I've included some case law from New York about remote depositions that might be handy that are recent cases. Ask the witness what they reviewed in preparation of the deposition, what documents they reviewed, who they had discussions with other than their attorney.

And don't forget it's not just who did they have to discussions with? What did you discuss? Where was the discussion? Not just what was the sum and substance? What did you say? What did they say to you? And then make sure that you follow up with who else did you speak to? Make sure that if it's your witness, you have reviewed all of the other testimony your witness has given in this case or others, so that they are consistent with prior testimony. And that they're consistent with any statements that they might have given to any medical providers, that are going to be in their medical records, that could potentially be used as collateral cross examination fodder to hurt their credibility.

Make sure that you know about any skeletons in your client's closet so to speak prior to the deposition. And make sure that you address those prior issues with your client prior to the deposition, so that if they do come out, your client knows how to answer them. And make sure that you go over that stuff during all three of the sessions of your preparation, you should begin your first preparation session when you're eliciting confidence with the witness and establishing trust with the witness. And you use that time period to have your witness, your client disclose anything that could harm them during the deposition.

You also want to remind your witness prior to the deposition about what other people might have said thus far in the case, so that they have an understanding of where their testimony fits in and whether it's consistent or inconsistent with any other witnesses, whether they be parties or not. Remind them that if it's being recorded that their body language is important. Remind them that there is no need to bolster their testimony or exaggerate, that you have a good claim and that you would not have taken the case if they didn't have a good claim.

And that the truth is the most important thing that they can have and we have it behind [inaudible 00:58:19]. So good tactic, good attorneys tend to ask questions in a speedy manner in order to make witnesses nervous. And I like to tell the witness, "This is your show," and let them wait for you. And the faster that they ask the question, the slower you give a response. And it is up to them to set the tempo, the speed and let everybody wait for them. And don't think out loud, think in your head and take a deep breath, and then only give information that will respond to the question that is in front of you and nothing else.

More information will elicit more questions and your goal is to limit the amount of questions. More questions lead to potential more exposure, so it's important to make sure your client is in a calm state of mind. I always remind them to have a good breakfast and to try to go to sleep early, and to come in and meet with me at least 45 minutes prior to the deposition, so I can give them a quick refresher and check their level of state of mind and their energy.

I hope all of this has been very helpful to you. If you have any questions, you can always feel free to reach out to me. My name is Justin Blitz and I can be reached via email at J-U-S-T-I-N @schulmanblitz.com. S-C-H-U-L-M-A-N-B-L-I-T-Z.com. [email protected] Thank you all for your time and attention. God bless. God speed. You're all doing a wonderful, wonderful, wonderful practice. And we should all feel honorable and practice with respect. God bless you.

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