Applying the Usual Stipulations at Deposition by alicejenny


									                                                       ECTI TIC
                                                      SP R A CO N E B A S I C S

                                                                                                         By Heather E. Stern
an issue—and the one holdout is the court in
which your case is venued. You may be able
to argue that recent changes in the law in
other jurisdictions support a change in the law
in your court as well.
• The U.S. Supreme Court has recently issued           Applying the “Usual Stipulations” at a
a decision that applies a new rule favorable to
your client, but the parameters of the rule have
not yet been fully defined by the lower courts.
Practitioners can use the new authority to
argue that an issue should be decided in their
    The next step is determining how to seek
a change in the law. Once again, thinking
ahead about long-term goals is key. When
you are presented with a new case, don’t
think merely about its resolution. Think about
whether your client’s case raises significant
issues beyond its particular facts. Discern
whether the case implicates a law you seek to
affect. Develop a strategy at the beginning of
the case for how to address these cutting-
edge issues.

Careful Planning
                                                        AMANE KANEKO

You should revisit your goals at regular inter-
vals throughout the case. Is there a legal claim
or defense you should preserve at the begin-
ning of the case for a dispositive motion, trial,
or appeal? Is there a fact you need that would              he last question has been asked, the last     the stipulations may also address the handling
help obtain the change you seek? Is there a
trial exhibit or testimony you should use to
preserve an argument for later presentation on
appeal? Be prepared to challenge the law in a
clear and convincing fashion and to use the
                                                      T     objection has been made, and the witness
                                                            has given the last answer. Finally, the
                                                            deposition has concluded. One of the
                                                      lawyers asks, “The usual stipulations?” For a
                                                      new lawyer unfamiliar with this custom, this
                                                                                                          of the recordings.
                                                                                                              As an initial matter, lawyers typically stip-
                                                                                                          ulate that the court reporter is relieved of his
                                                                                                          or her duties under the Code of Civil Pro-
                                                                                                          cedure, which is often referred to simply as
appropriate authority to do so.                       question can spark anxiety and self-doubt.          “the Code.” Some lawyers do not agree to
     Of course, every strategic legal plan faces      With a little preparation, however, the lawyer      this broad stipulation, which relieves the
pitfalls. Pursuing a long-term strategy may           can respond with confidence.                        reporter of the duty to transcribe the record
result in an adverse ruling to your client.               Deposition stipulations are often entered       accurately. A narrower stipulation can be pro-
Additionally, an ill-advised argument could           into among counsel at the conclusion of a           posed that relieves the court reporter of his or
result in unnecessary costs and legal proceed-        deposition in a case pending in state court.        her duties under the Code concerning the
ings. As you pursue the long-term goals, no           These stipulations may be used to change the        custody of the transcript and notification to
matter how much they may ultimately bene-             rules imposed by the Discovery Act concern-         other parties of any changes to the transcript.
fit your client, you always need to consider the      ing the handling of the transcript.1                    The purpose of this stipulation is simply
client’s short-term interests as well.                    In truth, there is no such thing as the         to eliminate the default application of the
     With careful planning, you can avoid an          “usual stipulations.” Most of the time, they are    statute to the handling of the deposition tran-
approach to law that merely addresses one file        entered into orally and transcribed by the          script.2 The default rules concern the amount
at a time and never considers how the law             court reporter as part of the record. They          of time a deponent is given to make any
should be changed. A long-term approach               change the duties that the law would other-         changes to the transcript, the means by which
has the potential of establishing favorable           wise impose on the court reporter, the              the transcript is reviewed and approved or
legal precedent for future cases. It will also save   lawyers, and the deponent regarding the han-        rejected by the deponent, and who has cus-
your current clients money by avoiding the            dling of the deposition transcript. If there is     tody of the transcript following its preparation.
need for making claims or asserting defenses          a video or audio recording of the deposition,       If counsel stipulate to relieve the court reporter
to issues that are now already established in
your clients’ favor.                                   Heather E. Stern is a partner with the law firm Kralik & Jacobs LLP in
     In short, think several steps ahead, just like    Pasadena. She specializes in real estate and business litigation.
a chess player. You will be glad you did. ❖

46 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011
of his or her duties, counsel should also agree      the deposing party. With an impending motion       ney may have difficulty obtaining the original
on the alternative obligations.                      or trial date, the terms of this stipulation can   transcript from the lawyer with custody of it
                                                     be important. No one wants to file a motion        when the trial occurs years later and the
Review of the Transcript                             for summary judgment on the basis of key           lawyer with custody is no longer involved in
By statute, deponents have 30 days to review         admissions made in a deposition, only to find      the case. To cover these scenarios, lawyers
the written transcript of the deposition, make       out after filing the moving papers that the        typically stipulate that if the original tran-
any changes, and approve or refuse to approve        deponent has changed the transcript to dis-        script is for some reason lost, stolen, or oth-
the transcript. The statutory 30-day period          avow the admissions. If timing is critical,        erwise unavailable, that an unsigned certi-
begins when the court reporter provides the          negotiate a shorter period for the deponent to     fied copy can be used in lieu of the original.
required written notice to the deponent and          review the transcript and an obligation to
all parties attending the deposition that the        report any changes by electronic mail or fac-      Rare outside Southern California.
transcript is available for reading, correcting,     simile rather than by postal mail.                 While deposition stipulations may be common
and signing.3                                                                                           practice in Southern California, in other areas,
    In many circumstances, counsel attending         Custody of the Transcript                          customs differ. For example, lawyers in
the deposition stipulate to a different deadline     By statute, after the review period expires,       Northern California do not ordinarily enter into
for the deponent to review the transcript. An        the court reporter is obligated to certify and     stipulations at the conclusion of depositions.
impending trial or motion date may lead              deliver the sealed original transcript to the      If you are attending a deposition outside
counsel to stipulate to a shorter period. A          attorney who noticed the deposition.5 That         Southern California, find a moment during a
deponent’s upcoming vacation or pressing             attorney is then obligated to store the origi-     break to ask the other lawyers attending the
work obligations may lead counsel to stipu-          nal transcript “under conditions that will pro-    deposition whether the common practice
late to a longer one.                                tect it against loss, destruction or tamper-       includes deposition stipulations. And if it does
    In addition, counsel typically stipulate         ing.”6 Counsel sometimes agree instead that        not, be sure to familiarize yourself with the
that the transcript, once prepared, shall be sent    the original transcript shall be maintained by     default rules under the Code, since they are the
to the deponent or to the deponent’s counsel         counsel for the deponent, or by someone else       guide for handling the transcript.
for review. Counsel then typically agree that        other than the lawyer for the party noticing the       Although there are common topics covered
the agreed-upon time for the deponent to             deposition. For example, if the deposing party     by a deposition stipulation, the details—such
review the transcript begins on the date that        is likely to be dismissed in the near future,      as the number of days for the deponent to
the transcript is sent to the deponent or the        counsel may stipulate that the original be         review the transcript and who retains cus-
deponent’s counsel, rather than the date on          maintained by someone else to avoid impos-         tody of the original transcript—will differ
which the court reporter advises the depon-          ing ongoing duties on a party that is likely to    from case to case depending on the circum-
ent that the transcript is available for review      be no longer involved. The stipulation also        stances. So if at the conclusion of the depo-
at the court reporter’s office.                      sometimes specifies that the original tran-        sition, you are asked to stipulate to the usual
    In the absence of a stipulation to the con-      script must be maintained until after final        stipulations, you should not hesitate to ask the
trary, any changes to the transcript are either      judgment in the action, unless otherwise           lawyer to offer a particular proposed stipula-
made by the deponent in person at the office         ordered by the court. By statute, counsel must     tion for your consideration. In listening to
of the court reporter or “by means of a letter       retain the transcript until six months after       the proposal, make sure that the proposed
to the deposition officer signed by the depon-       final disposition of the action.7                  stipulations suit the client’s needs, particularly
ent which is mailed by certified or registered           Counsel also usually stipulate that the        regarding the timing of the review of the tran-
mail with return receipt requested.”4 Lawyers        lawyer with custody of the transcript is obli-     script. Assuming that the stipulation is satis-
usually stipulate that the transcript, once pre-     gated to make the transcript available upon        factory on these grounds, you should feel
pared, shall be sent directly to the deponent        demand of any party for any trial, hearing, or     comfortable responding with the customary
or to the deponent’s counsel (usually by a           other purpose in the litigation.                   “so stipulated.”
specified means, such as overnight mail) so              While a stipulation as to how many days            Similarly, if you are counsel for the depos-
that the review does not need to occur in            a deponent has to review a completed tran-         ing party, be ready to offer a proposed stipu-
person at the court reporter’s office. In addi-      script is useful, deponents often fail to          lation of your own. Assuming that it covers the
tion, lawyers may stipulate to a different           expressly approve, disapprove, or make a sin-      necessary topics and addresses any unique
means by which parties are notified of any           gle change to a transcript after receiving it.     needs of the deponents or the lawyers in
changes ultimately made to the transcript.           Lawyers therefore often stipulate that if the      attendance, you can end your deposition with
    One common stipulation obligates the             deponent fails to approve or provide notice of     a smooth invocation of this Southern
lawyer for the deponent to provide written           any changes to the transcript within the allot-    California tradition.                           ❖
notice within a stipulated period by regular         ted period, the deposition shall be given the
U.S. mail (or some other means) to all parties       same force and effect as though it had been        1 CODE CIV. PROC. §2016.030.
                                                                                                        2 See CODE CIV. PROC. §2025.520.
of any changes that are made to the tran-            approved and signed without corrections. By        3 CODE CIV. PROC. §§2025.520(b), 2025.520(a).
script after receiving notification of the changes   statute, this would be the same result in the      4 CODE CIV. PROC. §2025.520(c).

from the deponent. If the deponent is not            absence of a stipulation.8                         5 CODE CIV. PROC. §2025.550(a).
                                                                                                        6 Id.
represented by counsel, the stipulation typi-            A deponent may never return the original
                                                                                                        7 CODE CIV. PROC. §2025.550(b).
cally imposes those duties on the lawyer for         transcript that he or she was sent, or an attor-   8 CODE CIV. PROC. §2025.520(f).

                                                                       Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 47

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