Preparing Witnesses for Deposition: Overcoming Challenges ...

1 The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Presenting a live 90-minute webinar with interactive Q&A Preparing Witnesses for deposition : Overcoming Challenges With 30(b)(6) Representatives and Fact and Expert Witnesses Navigating Current Restrictions on Defending Counsel, Complying with Ethical Guidance, and Strategies for Witness Preparation Today s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, JANUARY 12, 2017 Mark Bloomberg, Partner, Zuber Lawler & Del Duca, New York John C. (Jay) Maloney, Jr., Partner, Zuber Lawler & Del Duca, New York S. Calvin Walden, Partner, Wilmer Cutler Pickering Hale and Dorr, New York Tips for Optimal Quality Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection.

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3 Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon. FOR LIVE EVENT ONLY 5 STRAFFORD WEBINARS Preparing Witnesses for deposition : Overcoming Challenges with 30(b)(6) Representatives and Fact and Expert Witnesses By: John C. Jay Maloney, Jr., Esq. Zuber Lawler & Del Duca, LLP S. Calvin Walden, Esq. Wilmer Hale Mark H. Bloomberg, Esq. Zuber Lawler & Del Duca, LLP January 12, 2017 6 Subjects: Importance of Planning and Preparation Based On The Type of deposition Witness Involved Restrictions On Defending Counsel at a deposition Guidance On Witness Preparation for Preparing The Fact Witness to Perform At His or Her Best Special Rules for Preparing The Rule 30(b)(6) Witness or Corporate Representative for Preparing The Expert Witness For His or Her deposition The Videotaped deposition In Mind During Preparation 7 Ethical Duty and 2.

4 Competence 3. zealous advocacy 4. reasonable diligence of Depositions Generally: discovery tool to learn or confirm what you know about the adversary s case, and to prepare your attack useful admissions for use in a summary judgment motion or at trial witness s credibility a milestone in settlement process I. The Importance of Planning and Preparation 8 deposition Witness Planning (continued) of Depositions to your Case: witness must know your case and be able to take advantage of opportunities at the deposition to advance your client s position and trial themes 2. your witness must avoid damaging admissions, mistakes, or omissions at his or her deposition that you will have to deal with for the rest of the case 9 deposition Witness Planning (continued) Assessment, Planning, Preparation and Rehearsal are essential to excellent performance at the deposition must know the personality type, personal characteristics, and role of the witness in your case so you can set reasonable goals for the witness s performance and preparation are hard work and must continue throughout the entire deposition process from notice to the deposition transcript and submission of errata sheet practice in Q&A over a prolonged period is essential to excellent performance at the deposition 10 II.

5 The Current Restrictions on Defending Counsel at a deposition Principal Areas of Restrictions witness communications during course of deposition about breaks, lunch, interim periods before deposition resumes? about protecting the privileges? attorney s objections and directions to witness not to answer 11 Witness Communications shall not initiate a private conference with the deponent while a deposition question is pending except to determine whether a privilege should be asserted. SDNY/EDNY Civil Rule Sheindlin (SDNY) Individual Rules conference with questions pending presumptively improper, except where there is a privilege issue federal courts, including New Jersey federal courts (Local Civil Rule (6)(a)), follow the restrictions against attorney-witness communications set down by Judge Gawthrop of the Eastern District of Pennsylvania in Hall v. Clifton Precision, 150 525, 531-32 ( Pa. 1993) Current Restrictions (continued) 12 Current Restrictions (continued) York State Courts shall not interrupt the deposition to communicate with deponent except to determine whether question should not be answered under Rule ** ii.

6 And reason for communication shall be stated on the record clearly and succinctly NYS Uniform Rules Section (b) ** privilege, court ordered limitation, question plainly improper and causes prejudice 13 Current Restrictions (continued) Jersey State Courts Ct. R. 4:14-3(f) Once the deponent is sworn no conversations between deponent and counsel except regarding assertion of claim to privilege, a right to confidentiality or limitation pursuant to a previously entered court order. See, In Re PS&G Shareholder, Lit. 320 Super. 112, 118-119 ( 1998). 14 Attorney s Objections and Directions Courts R. Civ. P. 30(c)(2) Objections: An objection must be stated concisely in a non-argumentative and non-negative manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the Court, or to present a motion under Rule 30(d)(3). Current Restrictions (continued) 15 Current Restrictions (continued) Sheindlin (SDNY) Individual Rules Directions not to answer are presumptively improper, appropriate only: To protect privilege Question intended to harass Question clearly irrelevant causing substantial prejudice Objections must not be suggestive 16 Current Restrictions (continued) York State Courts stated succinctly and framed so as not to suggest an answer a clear statement of the defect in form or other basis of error or irregularity than that persons in attendance shall not make statements or comments that interfere with questioning.

7 NYS Uniform Rules Section (b) 17 Current Restrictions (continued) 3. New Jersey State Courts concerning the form of the question, the manner of taking the deposition or other matters that might have been corrected at that time are waived, if not made in a timely fashion during the deposition Ct. R. 4:16 4(c)(2) objection must include a statement .. as to why form is objectionable so as to allow the interrogator to amend the question. Ct. R. 4:14 3(c) attorney may instruct the deponent not to answer a question only when necessary to preserve privilege, to enforce a limitation ordered by the court or to seek to terminate the deposition where it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent. Ct. R. 4:14 3 18 are Enforced by Sanctions Security National Bank of Sioux City, Iowa v. Abbott Laboratories, 299 595 ( Iowa 2014), rev d on other grounds, 800 936 (8th Cir. 2015) 2. New Jersey State Courts Cr.

8 R. 4:14-4 and 4:23 Current Restrictions (continued) 19 Attorney Objections (continued) Lawyer s Response to These Constraints that the witness must be able to fend for himself or herself at the deposition extensive and careful preparation of the witness will provide the self-confidence and experience necessary for the witness s performance excellence best defend your witness by Preparing him or her in advance 20 III. Ethical Guidance on Witness Preparations have an ethical duty to your client to prepare your deposition witness and i. competence ii. zealous advocacy iii. reasonable diligence 21 III. Ethical Guidance on Witness Preparations (continued) far can you go during your deposition preparation? Requirements: Candor Toward the Tribunal (a) a lawyer shall not (4) offer evidence the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity the lawyer shall take reasonable remedial 4:1 Truthfulness in Statements to Others (a)In representing a client a lawyer shall not knowingly: (1) Make a false statement of material fact or law to a third 22 Ethical Guidance (continued) Bar Ethics Opinion 79-79 The lawyer may not assist in Preparing testimony that she knows or ought to know is false But, if not false or misleading, a lawyer may: (i) suggest words to the witness; ii) suggest favorable facts based on what other Witnesses have said 23 Ethical Guidance (continued) 116 Restatement (3rd) Law Governing Lawyering In Preparing a witness to testify, a lawyer may: Invite the witness to provide a truthful testimony favorable to the lawyer s client; Discuss the role of the witness and effective courtroom demeanor; Discuss witness s recollection and probable testimony.

9 Reveal to the witness other testimony or evidence that will be presented; Ask the witness to reconsider the witness s recollection or recounting of events in that light; Discuss the applicability of law to the events in issue; 24 Ethical Guidance (continued) Comment 116 Restatement (3rd) Law Governing Lawyering (continued): Review factual context into which the witness s observations or opinions would fit; Review documents or other physical evidence that may be introduced; Discuss probable lines of hostile cross examination; Rehearse testimony; Suggest choice of words that may make the witness s meaning clear; BUT MAY NOT assist the witness to testify falsely as to a material fact. 25 Ethical Guidance (continued) Law RTC v. Bright, 6 336 (5th Cir. 1993) A lawyer may attempt to persuade a witness, even aggressively, that the witness initial version of a certain fact situation is not complete or accurate. State v. McCormick, 298 788, 259 2d 880 (1979) A lawyer may explain the law in a given situation and go over questions and answers, so long as the testimony is the witness s own testimony, and not testimony placed by the lawyer in his or her mouth, and is not false or perjured Ibarra v.

10 Baker, 338 Fed. App x 457 (5th Cir. 2009) Attorney crosses the line when he/she influences the witness to alter testimony in a false or misleading way 26 : Vigorous sandpapering by counsel of a witness s potential testimony during preparation is ethical, so long as the deposition testimony is the witness s and it is not false or perjured Ethical Guidance (continued) 27 IV. Tips for Preparing The Fact Witness to Perform at His or Her Best the Witness type of nervousness/seriousness of purpose does this witness fit into your case? testimony do you need affirmatively from this witness? good is his or her memory of key events/documents? much time/effort (yours and the witness ) will be needed? reasonable goals for the witness performance your time to make sure you meet those goals (plan on at least two separate preparation sessions) 28 Tips for Preparing (continued) in simple terms the nuts and bolts of what goes on at a deposition examination of witness under oath will proceed using Q&A format deposition will be conducted at the adversary lawyer s office can be present (including representatives of the adversary party) documents the witness is likely to be shown 29 Tips for Preparing (continued) the witness is expected to do 7.