NOTEBOOKS FOR DISCOVERY,SETTLEMENT TRIAL by iamdmx

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									ONE FOR THE MONEY, TWO FOR THE SHOW …
         TRIAL & DEP NOTBOOKS

                     By: Tom Vesper



 MOUSETRAPS, H-BOMBS, AND THE DEATH STAR:

 NEW TOOLS AND TACTICS FOR NEW PROBLEMS:

  BIGGER & BETTER SETTLEMENT, DEP & TRIAL NOTEBOOKS



                  By: Tom Vesper

            Westmoreland, Vesper & Quattrone
                     Bayport One
                8025 Black Horse Pike
             West Atlantic City, NJ 08232

                  609 645 1111
                  800 645 6987
            tom@westmorelandvesper.com
       A.    AN INTRODUCTION TO THE 2 NEW NOTEBOOKS

                          TABLE OF CONTENTS


I.      INTRODUCTION TO THE TWO NEWEST NOTEBOOKS: BIGGER &
        BETTER


II.     WHAT’S WITH THE TRAPS, BOMBS AND DEATH STARS?


III.        HOW CAN YOU FOCUS AND TEST DRIVE YOUR CASES?


IV.     SOME IMPORTANT QUESTIONS FOR ANY TRIAL LAWYER


V.      CONCLUSION: CHOOSE YOUR WEAPONS



                B.   PREPARE FOR TRIAL BY “FOCUSING”


       C. PREPARE FOR & CONDUCT BETTER DEPOSITIONS
                            MOUSETRAPS, H-BOMBS, AND THE DEATH STAR:

                    NEW NOTEBOOKS FOR DISCOVERY,SETTLEMENT & TRIAL


                                        Thomas J. Vesper, Esquire
                                    Westmoreland Vesper & Quattrone
                                         Bayport One - Suite 500
                                          8025 Black Horse Pike
                                   West Atlantic City, New Jersey 08232
                                              (609) 645-1111



I.     INTRODUCTION TO THE TWO NEWEST NOTEBOOKS:
       BIGGER & BETTER

              According to surveys, most lawyers today are experts at litigation. They do everything
     (especially some of our hourly brethren) prior to trial. But few litigators have actual jury trial
     experience. My Marine Corps buddy, Jim Bob Moriarty, a trial lawyer from Houston, Texas,
      refers to the trial lawyers job of litigating as akin to a condenser. That is, just like a
     condenser in a refrigerator takes out the hot air, the trial lawyers job is to remove the hot air
     from the pre-trial litigation process: compress and avoid unnecessary time delays or wasted
     motions. My other Marine Corps pal, John Romano, says that ―today (for many reasons, not the
     least of which is financial self motivation), insurance companies are less willing to make fair
     settlement offers and more willing to force every case to trial and/or appeal; and, many plaintiff
     ―trial lawyers‖ (for many reasons, not the least of which is financial self-preservation and ―cash
     flow‖) are less likely to try cases and more likely to mediate/arbitrate.‖ I concur with both of
     these straight shooter views of personal injury practice. However, there is a method to reach
     resolution in shorter time and with better results. If you shorten your clients time line to
     settlement and/or trial, you will succeed in your law practice by satisfying -- if not enthralling --
     your clients with your no postponement approach to practicing trial law.
              Organizing and centralizing your thoughts, strategies and materials needed to conduct an
      efficient and effective settlement presentation, discovery and trial begins with an overall "file
      sense" of order and an ongoing system or organizational framework (or "toolbox") in which to
      store and from which to retrieve information. Case files should be standardized and left in a
      proper order so they can be quickly yet accurately reviewed in segments. For example: a good
      basic case filing system is one where all correspondence is date stamped in chronological order
      in one clip/folder/binder et sequentia; all investigation materials are arranged chronologically and
      indexed; all medical records are filed chronologically or by subject or treatment modality or
      health care provider with an indexed covering page or cumulative table of contents; pleadings
      and discovery likewise are date stamped and kept in chronological and/or procedural order and
      indexed. This type of standardized and indexed case file allows for a quick manual or computer
      review of the file so thoughts and plans can be formulated for taking or defending any issue
      during discovery or trial.

              The subject of this paper is to orient all plaintiff trial lawyers to the newest method of
      arranging and storing case materials so that settlement, written discovery and depositions can be
      taken, focus groups can be conducted more efficiently, and ―the triple play‖ of the discovery
      phase of litigation, the ever present mediation/arbitration and trial preparation can be completed
      in a more timely, thorough and efficient manner. The following "Notebook" methods of
      conducting focus groups, discovery, trial preparation and follow through are the same systems we
      have continued to perfect and use in our personal injury and commercial trial practice. The new
      Notebook system involves the interchangeable use of bigger (2 volume) Deposition
      Notebooks and (2 volume) Trial Notebooks. There are many publications and articles on the
      procedures, strategies and the who-what-when-where-how of depositions This paper provides an
      introductory preview of the Deposition Notebook 3rd ed, and Trial Notebook, 5th ed., for
      settlement strategy, preparing settlement presentations, preparation and taking of depositions as
      well as focusing your overall discovery by use of the Deposition Notebook. The outline for
      assembling a Deposition Notebook and the forms attached can be restructured, revised, reused
      and hopefully reviewed to assist you, the trial lawyer, and your staff in follow-up discovery and
      ongoing case management and trial preparation.

              Any Deposition Notebook or discovery system should be capable of cross referencing
      into the lawyer's Trial Notebook. See Trial Notebook 5th ed. This paper will also provide an
      outline for the collation, organization and preparation of your cumulative discovery and case files
      or boxes for settlement presentation and trial.




II.         WHAT’S ALL THESE “TRAPS, BOMBS AND DEATH STARS?”

               These nick named techniques are innovative ways for plaintiff trial lawyers to fight fairly for our
      clients to achieve full unobstructed discovery (the ―Death Star‖ Dep Notice), fair settlements (the
      ―Halpern H-Bomb‖ Demand Letter), and acceptance of responsibility by wrongdoers (the ―Miller
Mousetrap‖).


         The “DEATH STAR” DEPOSITION NOTICE, is the invention of Mark Kosieradzki ,Esq.,
from Minneapolis, MN, my co-author. Named for the Star Wars sci-fi movie ultimate weapon which
destroyed entire planets, the ―Death Star‖ dep notice is fully explained in the Deposition Notebook. It is
one of the best ways to use Federal Rules and equivalent state court rules to best uncover all relevant
documents and how and why they were originally created used and filed, and then for purposes of the
litigation discovery how they were located, copied (edited? hidden? or deleted?) and produced for the
deposition.

         The “HALPERN H-BOMB” DEMAND LETTER, is one of many settlement strategies created
and perfected by Richard Halpern, of The Halpern Group, Springfield, NJ. It combines the essence of a
powerful negotiation position (real threat) plus Rich Halpern’s special recipe (do the unexpected). See,
Richard Halpern, The Chaos Theory and The Uncertainty Principle Offer New Approaches to
Tort Negotiations, TRIAL Magazine, June 1999. It is a terse but devastating tool to either move the
insurer to immediate settlement or allow plaintiff counsel to assume a commanding position throughout
the litigation and if needed, post trial hearings for sanctions/bad faith trial for excess liability.

         This special demand letter does not elaborate upon liability or damages. It is a short cover letter
with only one or two important items: 1) an independent/objective case evaluation or JVR (Jury Verdict
Research), and 2) a properly executed release from the plaintiff. The first item is optional. The JVR
may or may not be provided. If provided, it may simply state there is an objective evaluation of the case.
If attached, the JVR report will confirm the amount of the probable jury verdict. This JVR evaluation
may be obtained from sources such as the The Halpern Group or national and state jury verdict research
projects. The second and most explosive part of this very powerful demand letter is the attached release
signed by your client with an expiration date. The effect of sending the liability carrier a signed release
for the specific amount you demand is that for the time period allotted (usually 20 to 30 days) for the
carrier to accept this ultimatum, they have the exclusive power to save their insured from further risk of
excess liability. The pressure and responsibility to act in good faith is thrust squarely upon the adjuster
and the supervisor. It is an ultimate surprise maneuver; and when used properly will most often
precipitate a settlement, or at least some discussion.

        This tactic is unique and has the effect of setting your client’s case apart from any others. It will
most certainly result in a call or letter from the adjuster. Caveat to using ―H-Bomb‖ is that you must
never bluff. That is, if your client does execute a release and the insurer refuses to accept it, you and
your client must be prepared to try the case and obtain a verdict or settlement for at least the amount of
the ―H-Bomb‖ demand. If you capitulate and settle for less, you will never be able to use the ―H-Bomb‖
method again. You will be perceived as a paper tiger, a blowhard, without any credibility. A sample
―Halpern H-Bomb‖ is supplied with both Trial & Deposition Notebooks. For more information about
case specific settlement strategies check out The Halpern Group web site: www.halperngroup.com.

      The PHIL “MILLER MOUSETRAP”, is a series of questions crafted by Phil Miller, Esq. of
Nashville, TN, which lead a defendant (individual/corporate representative) in a position of admitting
personal/corporate responsibility and possibly even reckless conduct. The line of questions (Form 3E,
   Phil Miller’s ―Mousetrap‖ Questions for Establishing Responsibility and/or Reckless Conduct), and a
   sample outline for a trucking company corporate representative (Form 3F, Phil Miller’s ―Mousetrap‖
   Sample Question Outline in a Trucking Co. Deposition), and an actual deposition transcript of ―Miller
   Mousetrap‖ Questions asked of a witness (Form 3G, Miller’s ―Mousetrap‖ Q & A From an Excerpted
   Deposition Transcript) are all available in the Deposition Notebook.

            The “DEPOSITION PROTOCOLS:” The Ground Rules We Should All Follow, is another
   brainchild of my ATLA (now AAJ) sidekick Mark Kosieradzki. With some lawyers, it is necessary/helpful
   to take the time to repeat all the ―ground rules‖ by which we conduct ourselves during depositions. This we
   do prior to taking depositions, at the very start of discovery by asking the adversary to agree in advance to
   the rules or what we like to call ―Protocols‖ for depositions. If the adversary will not agree in advance, there
   is always the option to file a motion for a court order to make the Protocols compulsory on all counsel.
   Likewise, if a new attorney -or the same obstinate one(s) – appear for and act up at the deposition in bad
   faith, ignorance, or intentional disregard of the rules, then re-reading on the record your understanding of
   the standards of conduct for depositions may have a curative effect upon the obstructive/obstinate
   attorney(s) and helps cast a favorable light upon your repute with your client, your staff, the witness and the
   court reporter. The Deposition Notebook (Section IV and Appendix Form 9B) has a full explanation, form
   of motion and brief in support of these ―Deposition Protocols [Section IV and Appendix 9B]



III.     HOW CAN YOU FOCUS AND TEST DRIVE YOUR CASES?

           There is an old Italian proverb: ―A man who chases two chickens always loses both.‖ Often
   focus groups and/or mock juries are not thought about until after discovery has been substantially
   completed and the case is on the trial list. Outstanding trial lawyers and jury consultants across the
   country advocate ―focusing‖ your trial themes can and often should be done long before the trial date is
   generated by our modern day civil case management computers. Focusing on dispositive issues for trial
   can be done before or shortly after the complaint is filed, at which time, the issues, themes and phrases
   that are identified by the ―real people‖ who make up your real juries can help direct and focus your
   discovery.
            The Trial and Deposition Notebooks will both provide an instructional, operational frame work
   and a depository for the forms, notes, ideas and strategies gathered and generated by using focus groups
   or mock juries. The Focus/Mock Jury Section with its 8 subtabs will assist trial lawyers and support
   staff to focus the goals of discovery as well as the ultimate issues to be contested at trial.
           This organized method and framework for conducting a focus group/mock jury allows you to
   plan, record and preserve the ideas generated from focus group/mock jury exercises. The Deposition
   and Trial Notebooks are both supplemented with an entire section, color coded with 3 large yellow tabs
   and 8 smaller yellow subtabs for conducting focus groups and mock juries. Optimally, you should begin
   to focus your client’s case from the initial interview, and the moment you begin to prepare the
   complaint to be filed. By seeing what issues are important to focus/mock jurors, you can draft more
   pointed discovery requests. At an early stage in the litigation process if you and your client become
   better oriented upon your objective and how to achieve same, there may be a tremendous savings in
   time, money and emotional stress.
IV. SOME IMPORTANT QUESTIONS FOR ANY TRIAL LAWYER
         As an admitted compulsive, "Type A", paranoid trial attorney, I always worry about my
  preparation or lack thereof. The newest Settlement, Deposition and Trial Notebook systems, as
  developed, revised and used, will help answer the following self-critical analyses:

         A. WILL THE NEW DEPOSITION AND TRIAL NOTEBOOKS HELP ME
            SETTLE MY CLIENT’S CASES ?

          In words of one syllable – YES! You will help build trust, confidence and rapport with
  your client by using the Settlement Notebook to analyze the fair range of settlement value. And,
  when negotiating, mediating or arbitrating you will show your credibility and preparation.


         B.      WILL THE NEW NOTEBOOKS HELP IMPROVE MY “BOTTOM LINE”?

          Time is a precious commodity. Your time is money. The Settlement, Deposition and
  Trial Notebooks will save both your time and your clients money. Once the Settlement, Dep
  and/or Trial Notebooks are prepared by your staff, you will save inordinate amounts of wasted
  time digging for information. Everything you need will be in one easily-reviewable location.
  Your mediation/arbitration, dep or trial preparation time and that of your staff will be reduced
  and, therefore, more time can be spent researching legal issues, thinking of creative ways to
  express yourself, or discussing the case with your clients and witnesses.

         The new Settlement, Dep and Trial Notebooks help avoid unnecessary mistakes or
  duplications of effort which often cost money. They will help focus your settlement strategy,
  settlement presentations, discovery and scheduling witnesses for trial, thereby preventing wasted
  witness time and unnecessary travel and standby expenses.

         C.      WILL THE NEW DEP & TRIAL NOTEBOOKS SAVE ME TIME?

           This is a self-evident feature of both the Deposition and Trial Notebooks. Once either
  Notebook is prepared, you need not reorganize your file for the next deposition or stage of
  discovery, ADR/CDR (Alternative/Complimentary Dispute Resolution) or trial. Notwithstanding
  litigation postponements or delays, you will be ready. After a quick review of and orientation to
  the cumulative discovery in the Deposition Notebook and a quick pre-trial check of the various
  sections in the Settlement Section and your Trial Notebook, you will be properly prepared to
  arbitrate/mediate/try your case.

         D.      WILL THE DEP AND TRIAL NOTEBOOKS BE SOMETHING
                 I CAN DELEGATE TO MY STAFF AND ASSOCIATES?

         With the instruction manual or guide provided with both the Dep and Trial Notebooks,
any young lawyer, paralegal, or legal secretary can understand how to begin to set up and update
your Settlement, Dep and Trial Notebooks. After one or two "trial runs", your staff will be
accomplished and experienced users. By ongoing use of the Dep and Trial Notebooks, both can
be adapted by you and your staff to your personal style.


       E.      WILL THE NEW DEPAND TRIAL NOTEBOOKS IMPROVE THE
               ORGANIZATION OF MY CASE FILE?

         Both the Deposition and Trial Notebooks are organized so you can find information
quickly and retrieve it easily for use in pretrial discovery, settlement conferences, preparation or
at trial. The organization of the 2 volume Deposition Notebook is set out in three main parts with
color-coded tabbed and numbered sections:

       I.      THE MAIN DEP NOTEBOOK

               1.      Plan
               2       Research
               3.      Q&A Outline
               4.      Notice/Stips/Instructions
               5.      Data Base
               6.      Dep Rules
               7.      Notes/Summary
               8.      Originals
               9.      Things To Do

       II.     THE DEP NOTEBOOK ARCHIVE contains three sets of tabs for completed
depositions:

               1.      Summary
               2.      Notes
               3.      Originals

       III.    THE SETTLEMENT & FOCUS GROUP section


        The organization of the 2 volume Trial Notebook is set out in seven color-coded
divisions:

                  I.   Pre-Trial Management
                 II.   Preparation
                III.   Legal Research
                IV.    Trial
                 V.    Ideas
                VI.    Discovery
               VII.    Post-Trial Proceedings

        Each of the seven Trial Notebooks main divisions has subtabs for almost every aspect
of pretrial preparation.

       Both the Deposition and Trial Notebooks systems are color-coordinated and therefore
allow easy access into their separate tabbed subsections as well as cross-referencing from the
Deposition Notebook into the Trial Notebook. Both provide an easy filing and retrieval system
for your staff.

       F.      WILL THE DEP AND TRIAL NOTEBOOKS AFFECT HOW I AM
               PERCEIVED?

        If you are organized and well prepared you will be confident. If you are confident, you
will be perceived as a worthy and formidable adversary. Being organized and well prepared will
always assist in the way the client, your adversary and the arbitrator/mediator/trial judge perceive
you as an advocate.


       G.      WILL THE DEP AND TRIAL NOTEBOOKS IMPROVE
               MY NEGOTIATION AND SETTLEMENT SKILLS?

        Whoever you confront – mediator, arbitrator, adjuster, opposing attorney – will ―see‖ you
are ready, willing and able to proceed with settlement or, more importantly, with the trial.


       H.      WILL THE DEP AND TRIAL NOTEBOOKS IMPROVE
               MY DISCOVERY SKILLS?

       If you have more time to reflect alone and with your clients upon the settlement
presentation, discovery, trial, witnesses and evidence, then you will be much more persuasive.
Your skills of necessity must improve. By saving unnecessary time searching for facts, dates,
materials, avoiding the "Paper Chase" for reshuffled memos, and reducing your warm up time,
you will be better prepared and confident. You will probably become a better advocate.


       I.      WILL THE DEP AND TRIAL NOTEBOOKS IMPROVE
               MY TRIAL SKILLS?

       Just being able to confidently find and retrieve materials and ―look‖ organized will make
you a better and more formidable advocate. Your preparation and hard work are more ―visible‖
and on display for your client, the witnesses, trial judge, jury, and your adversary.


       J.      WILL THE DEP & TRIAL NOTEBOOKS BE EXPENSIVE?
       The Deposition Notebook and Trial Notebook are sold by West Group for less than
$200.00 (member price) each. When you consider the amount of your time, your staff's time and
unnecessary expense to be saved and the amount of favorable client relationships and peer
approval to be engendered, this price is miniscule.
\
       K.      CAN THE DEP & TRIAL NOTEBOOKS BE REUSED?

        Another cost savings is the fact that the letter size three-ring binders and their respective
plastic color-coded tabs can be reused time and again for any of your settlement presentations,
discovery or trials. The letter size forms supplied in the Notebooks can be reordered from West
Group, Inc. and kept in supply in your office.

       If you have a busy litigation practice, you might want to have on hand several extra
binders and extra sets of dividers and forms. To order refills, simply call 1-800-221-9428.


       L.      CAN MY EXISTING SYSTEM(S) BE IMPROVED?

         If you already have a "settlement/deposition/trial book/folder system" and it is working
perfectly, then you probably have a very good system for your style of advocacy. However, even
"the best" offensive or defensive plan can be improved upon and updated.
         If you already have your own system for settlement, pretrial discovery and trial, be it with
trial folders, clips or two/three-ring binders, take the time to look at the Dep and Trial Notebooks
and adapt some of their up-to-date features to your litigation and trial prep systems.

       For more information about the Deposition Notebook and Trial Notebook and their
forms, please call West Group at 1-800-221-9428.


       M. DOES THE SETTLEMENT NOTEBOOK HAVE FORMS I CAN USE?

       Yes. There are many forms, checklists and sample settlement briefs to use to organize and
analyze and illustrate your clients’ damages.


       N. THE IMPORTANCE OF ORGANIZING SETTLEMENT

        Creating a system for evaluation and presentation of your clients’ damages will have a
positive and long lasting effect on your clients, adversaries and mediators/arbitrators.


       O. THE IMPORTANCE OF AN OVERALL SETTLEMENT STRATEGY

       To begin with the identification and justification of your client’s ultimate settlement goal
is the best way to reach it.


        P.   DOES THE DEP NOTEBOOK HAVE FORMS I CAN USE?

       As with the Trial Notebook, the Deposition Notebook has many checklists, forms, and
sample question outlines for your immediate use.


        Q. THE IMPORTANCE OF ORGANIZING DISCOVERY

        Whenever the opposition deposes your client, or you depose any important witness, the
use of a standard procedure allows you, the defense lawyer, court reporter and all parties to be
effectively and efficiently involved in the deposition process from the beginning and through the
follow-up phase.

        Whether you take depositions or simply propound epistolary discovery in the form of
interrogatories, requests to produce, requests to admit, etc., your overall goals and/or targets of
opportunity and follow up requests should be in a central location for easy access and review.

        An organized litigation system allows obtaining any requested data in a professional and
orderly manner. To allow yourself such a standard procedure or modus operandi is the key.
Providing yourself with a tabbed three ring Deposition Notebook and an organized three ring
Trial Notebook for trial preparation is a long term time saver and a helpful device to further your
discovery efforts and also prepare for trial testimony of the deponent.


        R.      DEPOSITION NOTEBOOK VS. FOLDERS

        Normally a "deposition folder" consists of the ubiquitous duo-pronged file folder with the
dep notice, a photocopied dep outline from a form book, some handwritten notes and a blank
yellow legal pad thrown in with driving directions to the dep site. This is probably the SOP
(Standard Operating Procedure) and "weapon of choice" for most trial lawyers. Whether you
divide a single dep folder into sub-parts with inserts, or you use tabs, or sectional dividers, or you
purchase a slightly more expensive three part folder or you go "to the mats" (an old Sicilian
expression) and purchase a three ring dep notebook depends upon your personal style. Let me
suggest a more organized and careful approach.

        One very simple way to prepare yourself for discovery is to divide the dep folder into
three standard parts: 1) Before, 2) During and 3) After the Deposition. Within these three parts
your dep outline/photocopied form book pages, notes and ideas can be recorded before the
deposition; the dep notices, exhibits and any notes taken during deposition along with the
transcript, or condensed transcript and/or a synopsis of the transcript can be filed in the second
part; and in the third "after action" section you can place any follow-up requests for documents,
inspections, or further discovery depositions and/or interrogatories or requests for admissions.
       S.      THE SETTLEMENT NOTEBOOK SYSTEM

       This section in both Trial and Deposition Notebooks allows you to accumulate and
organize your clients’ damages and have the information ready to present in a settlement brief or
carry with you into any pre-trial conference, arbitration or mediation. Many trial lawyers use
focus groups before discovery as well as prior to trial.


       T.      THE FOCUS GROUP SECTION

       The benefits of conducting concept or mock-trial focus groups is self-evident. The forms
needed to conduct any focus group with or without professional trial consultants are available for
your immediate use.

       U.      DOES THE FOCUS GROUP SECTION HAVE FORMS I CAN USE?

        Everything you need except the actual focus group members and a professional consultant
are ready for you and your staff to use.


       V.      THE NEW DEPOSITION NOTEBOOK

        A better way of approaching discovery and taking a deposition of a key witness is to use a
three ring binder Deposition Notebook and incorporate the following 10 tabs or dividers:

       1. PREP: Deposition Plan and Preparation Notes.

        Taking a deposition should not simply be for the purpose of finding out everything the
other side knows. It should be to uncover weaknesses in your opponent's evidence/claims/legal
theories, to discover and identify other witnesses, evidence or documents which cannot be
discovered by interrogatories, to explore and have explained your opponent's confusing or
technical documents, to force submissions to better evaluate the case for settlement, to evaluate
witnesses, to commit an adverse or expert witness to specific opinions or facts, and to perpetuate
testimony for trial.

       2.      OUTLINE: An Overview of Areas of Inquiry

        Usually you can readily find a form book which has an outline of sample questions
 to ask in almost every type of case. If you find the form questions or "lines of questioning"
helpful to tailor your discovery then use them as a guide and put copies into this tab. Anatomy of
a Personal Injury Lawsuit, 3d, (West Group, Inc.1997); Hare, Gilbert & Olanik, Full Disclosure:
Combating Stonewalling and Other Discovery Abuses, (West Group, Inc. 1997); Branson &
Heninger, Creative Demonstrative Evidence Video Set (West Group, Inc. 1997)

       3.      NOTICE: The Dep Notice/Subpoena With Attachments

       The actual Dep Notice pursuant to Federal Rule 29 or equivalent state rules should be put
       in your Dep Notebook and marked Exhibit P-1 at the start of the Deposition. If there is a
       deposition at which a designated witness is to be produced, the Dep Notice pursuant to
       FRCP30(b)(6) or state rule, or if a Deposition to Produce Documents then the Deposition
       Notice should have attached an itemized list of the documents or things to be produced.
       These attachment lists should be marked Exhibit P-2 before the deposition begins.

       4.      STIPS: The "Usual Stipulations"

        Federal Rule 29 provides that parties may by written stipulation provide for depositions to
be taken before any person, at any time or place, upon any notice and in any manner. The "usual
stipulations" can be typed in advance and actually handed to the attorney, deponent and other
parties. Some of the "Usual Stipulations" are:

        a.      RESERVED OBJECTIONS. All objections are usually reserved until the time of
trial except for objections to the form of the question. Beware that by local rule some courts
prohibit stipulations to preserve for trial objections which under FRCP 32(d) are waived if not
asserted.

        b.      REVIEW AND SIGNING OF TRANSCRIPT. Waiver of the right to review and
sign a deposition is usually agreed upon at the dep. Under FRCP 30(e) the witness and parties
may waive examination and reading of the transcript by the witness, and parties may also waive
signing of the transcript by the witness. Some attorneys prefer to use a deposition to impeach the
witness. Having the witness review the transcript and reaffirm the testimony by signing it may
therefore be preferable. It may be better to defer this stipulation on signing until after the
deposition is concluded and you know the general tenor of the deponents deposition testimony.

         c.     "ONE FOR ALL" OBJECTIONS. Another customary stipulation among counsel
is that any objection by one party is deemed to have been made by all unless otherwise indicated.

        d.      TIME SCHEDULE. The timing of recesses and the length of the deposition day
should be agreed to in advance or at the beginning of the deposition. In media res is not a
polite point in any discovery deposition to announce that you have another appointment.

        e.      EXHIBITS. The method of handling deposition exhibits should be agreed upon in
advance of the dep. Whether the court reporter attaches original exhibits to the original transcript
or uses copies or holds the originals until all depositions are concluded, the numbering sequence
of exhibits and the location of those ubiquitous colored Exhibit stickers are some preliminary
issues for you to resolve. Having a written protocol in advance of the deposition which the court
reporter and all parties are sent with the deposition notice is one step up on this issue.
        f.       MANNER OF OBJECTIONS. Especially during videotaping it is a good idea to
instruct all parties and the video operator that at the first sound of the word "Objection" or Off
the Video the videotape is to stop. The shorthand court reporter will continue the transcript. By
taking "film breaks or cut aways" from the vide, your video deposition will be "clean" and not
need editing at trial.

        g.     VIDEO DIRECTION. Videotaping has with it many attendant issues about
lighting, camera angles, blowups/closeups of witnesses, attorneys, exhibits, etc. All of these areas
of video dep technique require pre-planning and special instruction of the video camera operator
along with coordination between the video operator and court reporter.

       5.      THE WITNESS: Instructions To Give Before Dep.

      The following is an example of written instructions that can be given and read to the
deponent before the deposition begins:

a.     DEFINITIONS

       When a witness is going to be deposed and there are important words and phrases that
may have already begun to be used in the case, it may be worthwhile to give the witness a
standard set of instructions with definitions and ask the witness to adopt the definitions(s).

        After you find out their name, home address, business address, explain the deposition
process, then find out their educational background, any experience with deposition or trials, how
long they have prepared for this deposition, with whom they have communicated, what
documents they've reviewed, and whether there is any physical, medical, emotional or any reason
whatsoever for the deponent to have difficulty understanding questions or remembering the
events to be explored and giving truthful answers, then advise them of the following:

       b.      STANDARD INSTRUCTIONS

       (1)     INTRODUCTION. Mr/Mrs/Ms (X) my name is (X). You were given Notice
               (and/or Subpoenaed) for your Deposition because you may have knowledge about
               (X) or (you were designated by (A) as having the most knowledge about (B). I
               want to make sure you understand the following ground rules:

       (2)     BE CLEAR: It is understood that I am going to ask clear questions and I expect
               clear answers to the questions unless there is a part of the question or word or the
               question itself is confusing or not intelligible, then you as the witness are required
               to advise me. If you do not, then we all will assume that the question was clear
               and you are answering the question that is put to you.

       (3)     THE CERTIFIED RECORD: Do you understand that unless all attorneys agree to
               go off the record or take a recess everything that is said is going to be taken down
               by the court reporter and preserved for use at the time of trial.
(4)    OBJECTIONS: Do you understand I have a right to ask certain questions subject
       to some exceptions which your attorney will handle or your attorney will make
       objections. Unless there is an objection you are to answer the question.

(5)    TAKE ALL THE TIME YOU NEED: If I ask a question and you feel it is necessary
       to think about it or you want to refresh your recollection with any document or
       thing that can be supplied, please advise me and we will either give you the time
       to refresh your recollection or to think about the question and your answer. Do
       you agree that you will take all the time you need to think about the question and
       to answer honestly and fully before you answer?

(6)    If in any way the question is not understandable, or if it is confusing, ambiguous,
       or if you do not hear it please ask me to repeat it and I will do that or I will try to
       rephrase it so it is understandable, will you agree to do that?

(7)    USE ANYTHING YOU NEED: If you feel that reviewing a certain document or
       any piece of material would be helpful in your giving an honest and accurate
       answer today please say so and if you will do that I will try to obtain it for you.

(8)    THIS IS NOT A MARATHON: If for any reason you are or become tired and want
       to take a recess, please say so, I only ask that you try not to make your request for
       a recess after a question and before your answer.
(9)    FIRST AND SECOND HAND "KNOWLEDGE": If I ask for your knowledge
       about a subject I expect that you will not only tell me what you have personally
       observed, heard or sensed, but also what you may have been told by other people.
        The reason I ask for this "hearsay" or "other person information" is that the other
       person may have first hand knowledge and also may have to be deposed or our
       discovery may lead to find witnesses and information from other sources. So I
       need to know when you answer a question if you're supplying that information
       based on your first hand knowledge or "second hand" based on something that you
       were told. We all need to know who told you the information.

(10)   ESTIMATES: I may ask you about time, distance or other measurable facts.
       Please understand your best estimate is just as important to us as the exact amount
       or specific number. I would ask that if you can give a fair range or fair estimate I
       would prefer that an estimate be given rather than have you simply say "I don't
       know exactly."

(11)   YOUR LAY OPINION: I may ask your opinion about something or you may offer
       your opinion. If you do give any opinion I will ask that you give the basis of your
       opinion. That is, on what fact or facts or date or information did you base your
       opinion. I may also ask for your methodology. That means how did you arrive at
       your conclusion.
       (12)    DO YOUR BEST: After the deposition the reporter is going to prepare a transcript
               of everything you say and you'll have the opportunity to read. Today you must
               give your best and honest answers to all the questions in this deposition. After
               you've heard and understood each question do you agree to answer truthfully to
               the best of your knowledge.
       (13)    ANY REASON WHATSOEVER WHY YOU CAN'T BE DEPOSED: If there are any
               physical or emotional problems or medication or any personal condition which
               would make it difficult for you to concentrate on the questions and give honest
               and complete answers, will you please tell us.


       c.      SOME SPECIAL INSTRUCTIONS TO THE WITNESS

       The following are special instructions you may want to give to certain witnesses:

       (1)     CORRECT ANY MISTAKES NOW: If at any time you think of anything during
               the deposition which you want to add to any previous answer to correct any
               mistake or incomplete answer you gave please do so. I want you to tell us right
               away (but first tell your attorney and ask him/her).

       (2)     READ YOUR TRANSCRIPT CAREFULLY: After today you will have receive and
               have available a copy of your deposition. Please read it and if any answer is
               inaccurate or incomplete please correct your answer by notifying me (your
               attorney) at once.

       (3)     MAKE ANY CORRECTIONS UP UNTIL TRIAL: If after the deposition you have
               any thought that comes to mind from any source, (again you should tell your
               attorney) this deposition can be supplemented anytime up until our Court Rules
               provide, ___ days prior to trial.

       (4)     WHO KNOWS BETTER THAN YOU: You are a designated representative of
               company. If you know someone who has more information on a certain subject
               than you do and I ask you a question on that subject, please let me know the name,
               address and title of that person. Will you do that please.

       6.      THE COURT REPORTER: Written Instructions For Shorthand Reporters.

        It is preferable to give the Court Reporter a list of standard written instructions which
include standing requests that any time a witness is instructed "Not to answer that question", that
the record be noted and a separate list of such instructions be made for me for the purpose of a
Motion to Compel. Additionally any specific requests for any additional information that is not
available at the deposition should be made as a separate Request List and provided to all
counsel expeditiously and by the next day by the Court Reporter.

       7.      DEP RULES: Court Rules and Applicable Case Law.
        It is helpful to have a summary of some of the more common or fragrant violations of
professional conduct that occur during depositions, including the ever popular defensive
instruction to "Not Answer," the running objections that waste time and go on for five or ten
pages, the speaking objections that cleverly attempt to instruct the witness on how to answer, the
constant interruptions and advices to the deponent, etc. Having the case law at your fingertips in
your Deposition Notebook is often helpful to defuse a hostile deposition environment.

       8.      DATABASE: Case Database of Facts and Impeachment Data.

        The Deposition Database should be tabbed or sectioned off in your Dep Notebook. It
may be broken down and indexed into facts produced in Discovery to date and also any outside
investigation by reason of either medical, engineering or other technical research. Some or all of
this can be used to question a deponent. If the witness is an expert and prior dep transcripts have
been obtained, these prior statements can be synopsized and placed in this database.

       9.      TO DO: Things To Do & Notes.

      There should be one location in your Trial or Deposition Notebook into which a
cumulative follow-up Things To Do list is updated following the deposition and prior to trial.

       10.     ORIGINALS: The Original Transcript and Exhibits.

         Actual transcripts with original exhibits attached should be put in one location in the case
file. A well kept Deposition Notebook always has a place for the deposition whether it's the
condensed version where several pages are reduced in size onto one page or whether the original
transcript is filed. Access to the actual questions and testimony is critical along with an itemized
list of the exhibits in one location in the Dep Notebook or cross referenced from the Deposition
Notebook into the Trial Notebook or case file where the actual transcript and exhibits are located.

       11.    AN ARCHIVE SYSTEM: Where To Put The Completed Discovery

       The Dep Notebook has a repeating set of three tabs that allow you and your staff to store
each deponents testimony, along with your notes and a synopsis or digest of the dep. Each
completed dep is stored into the following tabs: (1) Summary, (2) Notes, (3) Originals.


       W.    DOES THE TRIAL NOTEBOOK HAVE FORMS I CAN USE?

       As with the Deposition Notebook, the Trial Notebook is itself a pre-flight checklist for
you and your staff to follow, and it has many checklists and forms for your immediate use.


       X.      THE TRIAL NOTEBOOK
        Building any plaintiffs case is like building a house. It requires thoughtful planning and
intense preparation. The blueprint for trial should be an integral part of every trial notebook. A
plaintiffs lawyer in any personal injury case seeks to build a case. The defense lawyer seeks to
destroy it. The basic defense strategy is both preventive and reactive. Defense attorneys look for
holes in the plaintiffs case and wedges that can tear it apart. In contrast, the task of the
plaintiffs lawyer is to build the most convincing legal and factual model possible.

        To try to present a plaintiffs case from the depths of a file that has grown haphazardly
for 12 months (or 12 years) is an accident waiting to happen. To bring these materials to court
as is or au natural  the way they happened to accumulate in the law firms storage area or
file room -- borders on legal malpractice.

       Well before the trial begins, the case file should be rearranged by the trial team. Case
materials that can be used for picking a jury, making an opening statement, presenting evidence,
cross-examining adverse witnesses, rebutting and summing up should be identified and sorted.
These materials will not be properly prepared through the day-to-day routine of managing
ordinary office files.

       Courthouse case management has become fashionable during the last decade. In
court-mandated case management, the judges and/or administrators and/or case managers are at
the helm. Often they aim for the earliest possible resolution. Depending on the degree of fervor
to keep the caseload statistics looking good, trial dates will be reasonable or unreasonable.
Sometimes pretrial hurdles are established to pressure litigants into a quick settlement.
Sometimes the ultimate solution  a jury trial  is scheduled. That is the time to put together the
Trial Notebook.

       A.      CASE MANAGEMENT GUIDE

       The Trial Notebook should start with a section devoted to planning, investigating and
developing negotiation and trial strategies. Such a section should include the following
subdivisions:

         1.     TIME LINE. Every trial preparation system must have something that
 illustrates how close you are to the deadlines that have been fixed for the case. This flow chart
could be made from actual calendar pages or drawn on a large artists pad or adapted from
printed forms. For example, the Tracking Control Form in the Trial Notebook shows an 18-
month period laid out in columns for each month and week to allow for notations. Your time
line should be put up in a location where both the attorney and the staff can refer to it easily.

        2.     MASTER LIST OR INDEX. This is an index of what belongs in the file.
Listing the contents of the clients file  itemizing each folder, binder, exhibit or collection of
exhibits  will help the plaintiffs trial team divide and classify case materials according to
subject matter. Once the file contents have been classified, the lawyer will be able to reorganize
the information and retrieve it effectively in court.
         3.     CHECKLISTS. A list of all necessary investigation to be done, medical and
liability experts to be used and audio-visual aids to be obtained will serve as an overall case
management guide.

        4.      COST CAPPER. Rating or estimating the ultimate value of each case at the
start will help avoid running up the clients costs. This is especially important in cases that
have limited or moderate value. Once a tentative cap has been placed on costs for the case, a
ledger with a running balance of out-of-pocket expenses should be kept in the Management
Section of the Trial Notebook.

        5.     FINANCIAL TARGET. Lawyer and client together should set a reasonable
financial goal for the case. Settlement discussions can be tracked in the Trial Notebook section
following the cost ledger. Once settlement talks begin, the history of demands, offers and
counter-offers should be recorded in chronological order.

         6.    MANAGEMENT FORMS. The final management section of the notebook
should contain your form releases and form consent documents, typed up and ready for signature.
 When defense offers are rejected by some clients, you may want to confirm the rejection on a
signed form which is then filed. If the client agrees to a settlement, pre-typed releases can be
filled in immediately and signed for the benefit of the insurance carrier and its attorneys.

       B.      DISCOVERY: COLLECTING THE LUMBER

        Discovery documents  answers to interrogatories, supplemental answers, deposition
transcripts, deposition exhibits, synopses of depositions, photographs, x-rays, expert reports, and
more  can accumulate into a pile as big as any stack of lumber at a construction site. To give
this amorphous pile a useful shape, you should work out a system for coding and arranging
discovery materials. Your staff should be trained to use this pretrial filing system consistently.
Answers to interrogatories, supplements to those answers by way of letter or formal amendment,
and deposition material should be kept in chronological or topical order.


       The simplest way I have found to collate, organize, coordinate and reuse discovery
materials is to place the plaintiffs answers to interrogatories and all supplemental answers in
chronological order in a separate, color-coded three-ring binder with an indexed table to contents.
 Each indexed item is tabbed and numbered in three places: on a chronological list in the Dep
Notebook and in the Discovery section of the Trial Notebook and on the cover page index (with a
description of the item) in the discovery folder. I try to use a separate three-ring notebook for
each defendant. All notebooks are organized in chronological order with an itemized index.

        Depositions should be synopsized, placed in chronological or subject-matter order, and
cross-referenced into the witnesses/deponents tabs in both your Dep Notebook and Trial
Notebook. Plaintiffs witnesses and defense witnesses can be color-coded, especially in
multiparty cases. The color-coding key should be prominently positioned in the file and cross-
referenced to ensure that all staff members understand the color coding in the file. Believe it or
not, this simple color-coding method has cut down drastically on filing mistakes in our office.

       If your Deposition Notebook is carefully updated it is a simple matter to transfer in
toto your Dep Notebook into your Trial Notebook or transfer the indexed Data Base and
Archived Deposition into your Trial Notebook or, in the alternative, simply place the Dep
Notebook index of accumulated discovery into your Trial Notebook.

       C.      ESSENTIAL RESEARCH

        Every personal injury case rests on one or more legal theories. References to
model jury charges for your state and a review of recent changes in the law will uncover the
statutory and common law pilings upon which the case will rest.

       The legal basis for recovery can be outlined quickly in 90% of all personal injury cases.
Getting updated case law can be done simply by Westlaw search, Shepardizing; checking the
Index of Legal Periodicals, and cross-referencing digests on case specific areas of liability,
causation, and damages.

        A three-ring legal notebook can be assembled for each case, as well as a standing case
book or compendium of personally-annotated jury instructions for use in all your cases. Each
trial notebook should contain a copy of pertinent basic jury instructions. Before trial, the attorney
should try to get a copy or trial transcript of instructions given by the trial judge in a recent
similar case. Researching both the law books and the trial judges most recent synopsis of the
law provides a very accurate site plan of the legal landscape where the clients case must be
built.

       D.      LAST MINUTE TRIAL PREPARATION

       The last few weeks or days before trial are apt to be hectic. A complete preprinted
checklist of last minute items helps ensure that last minute upsets do not distract you or your staff
from what they should do. Following the Trial Notebook outline should become standard
operating procedure.

        1.     Things To Do List: One form I find most helpful is entitled Things To Do.
This list seems to grow as trial day approaches. A master list of tasks showing the people
assigned to do them, deadlines and follow up tasks will help everyone on the trial team to
complete all essential tasks.

         2.     Trial Calendar. Using a Trial Calendar to plan and schedule witnesses is
very important. A blank one-month calendar makes an excellent Order of Proofs forms. When
trial lawyers step into court their clients should have an overall plan for introducing testimonial
and documentary evidence. The Order of Proof is usually established before the trial begins.
The lawyer has some rough idea of the anticipated order of witnesses and documents.

       3.      Lay and Expert Witness Tabs. The Trial Section of any trial notebook or
     system should have a separate tab, divider or folder for each witness. Material to be shown to the
     witness, annotated working copies of exhibits, material for cross-examination and impeachment,
     synopses of prior testimony or statements, and tabbed and cross-referenced expert and
     investigation reports can all be put in the witness divider or folder.

           Ideas for direct, cross, redirect and rebuttal testimony can be outlined in the notebook
     when witness preparation is concluded.

             The Trial Notebook helps reduce witness anxiety. Like the keystone in an arch, a well
     organized trial system puts it together solidly in the eyes of clients and witnesses. The sight
     of your three-ring Trial Notebook will act as a sedative for the frayed nerves of the inexperienced
     witness; even experienced expert witnesses respond favorably. They see, hear and sense that you
     are not going to waste their precious time with inappropriate pretrial preparation, or embarrass
     them professionally in open court.


V.       CONCLUSION: CHOOSE YOUR WEAPONS
             You may be a linear-type logical thinker who moves methodically like a freight train, or a
     creative stream-of-consciousness type who moves easily from one good idea to another. Whatever
     your style, you need a blueprint of your concepts for trial. That blueprint can be the Trial
     Notebook. If you have no plan, others will create and impose their own image of the case. If you
     have an imprecise plan, others will seek to distort the issues surrounding your clients case.

             Whatever your litigation or trial system is, you will have the right tool for the right job so
     long as your system is well organized, easily understood by staff, and easily transported to court.
     That way, when you reach the court room, you will be ready to retrieve all your specifications and
     plans from your tool box.

                 Whichever method you employ - simple file folder, three part folder, ring binders
        or the Deposition and Trial Notebooks in three ring binders - hopefully the important
        materials needed for discovery and trial preparation are gathered and organized in a
        fashion that you can use them effectively at any time. In discovery, using pre-printed
        instructions for your clients and deponents and having pre-typed "ground rules" for the
        adverse attorneys in the form of the Notice, Attachment/Schedule of Documents to
        Produce, "Usual Stipulations," and "Rules of Fair Play" (annotated with case citations)
        are things you can standardize in your office, reuse and recycle. Likewise, in preparation
        for trial, having a standardized arsenal of pre-typed forms, e.g.: Tracking Control Form,
        Things To Do, Trial Calendar, Juror Demographic Worksheet, Evidence Log.

               The time you spend now organizing and systematizing your litigation tools will
        pay big dividends in the future time you save preparing for, taking and following up on
        depositions and preparing for trial.
        C.     PREPARE FOR TRIAL BY “FOCUSING”
  (Reprinted with the permission of the author, Tom Vesper, and publisher, West Group)


                          USING FOCUS GROUPS/MOCK JURIES

               A. INTRODUCTION TO FOCUS GROUPS AND MOCK JURIES


   The use of focus groups or mock juries in trial preparation evidences a commitment to
excellence in advocacy. While somewhat different in function and purpose, they are both
static and dynamic methods for developing, testing and focusing case themes. The
classical static method involves sitting in your office, law library, car or laying in bed,
reflecting on the case and dictating ideas into a portable hand held Dictaphone. I have
done this. I have made lists of all the pluses and minuses of the case, the positives and
negatives of the plaintiff, each lay expert witness, the defense theories, the defendants,
and the defendant’s witnesses. From such a laundry list, I would extrapolate issues and
subjects I believed should be addressed in voir dire, my opening and trial proofs. I then
shared this index of trial themes or ideas with anyone who would listen: my partners,
associates, paralegals, staff, friends, neighbors, waitresses, waiters, cabbies, bartenders,
my barbers and even night janitors. This random sampling of whoever’s ear you can bend
is not the most productive or illuminating exercise.
  The second method I call the ―dynamic‖ approach and have found it to be the most
effective. To implement this pro-active method of preparing for discovery and/or trial, an
impartial group is selected by professional consultants or by an ad hoc, in house, amateur
member of my support staff. The focus group/jurors form a cross-section of the
community from which the jury panel will be selected. The group is presented with the
facts of the case—the good, bad and ugly—and then questioned by a
―trained/experienced‖ moderator or professional consultant to what impresses, bothers, or
concerns them the most. From this impartial group (not related by blood, law or
paycheck), I have found a much more accurate assessment and efficient exercise in
uncovering the ―gems‖ and ―worms‖ to be confronted or avoided at trial.
  In preparing for trial, particularly the threshold themes in voir dire and opening, a
focus/mock jury should be used to identify or confirm issues of juror opinion, attitude,
prejudice, prejudgment, bias and disbelief. If used early, focus group/mock juries can help
develop your client’s case themes. Often your original trial themes must be redesigned or
rephrased to meet the average lay person’s perspective. The focus group/mock jury can
also be used as a ―dress rehearsal‖ for your trial proofs and arguments when used later in
the process. The focus group is the most ―dynamic‖ method of getting valuable feedback
to aid the trial lawyer in preparing for trial.

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                             B. FOCUS GROUP VS. MOCK JURY

  The only difference between focus groups and mock juries is the time and commitment
to the project. That is, a focus group is usually a group of people raging in number from 6
to 12. It usually takes 2 to 6 hours with 1 to 2 hours of introductions, preliminary
instructions and ―opening/closing arguments‖; then 1-5 hours for a deliberation and
debriefing by the jury. The ―presentation‖ they see is usually a combination of openings
and summations from both plaintiff and defense perspective. The presentation can be
with or without a moderator or ―expeditor‖ who acts as a catalyst for jury discussion after
they see and hear the abbreviated and synopsized proofs of both sides.
  Just as Focus Groups differ from Mock Juries, there can be different kinds of ―Focus
Groups‖. Some trial lawyers and consultants utilize what is called a ―Concept Focus
Group‖ at the earliest stages of the client’s case. A ―Concept Focus Group‖ usually
consists of 6 to 8 people. Its purpose is to give a very broad outline of the case, or a very
broad outline of a particular issue (eg. comparative fault of plaintiff) or a single exhibit.
The ―Concept Focus Group‖ then usually spends 2-3 hours discussing their immediate
impressions of the case, client, issue or exhibits. ―Concept Focus Groups‖ can be very
helpful in discovering what jurors will




                                                                                            49
use in making up facts, creating meaning and ―filling the defects or gaps‖ in the presentation and in structuring
the story.
  A mock jury is a more elaborate process, is usually used prior to trial, and normally
takes more time and resources. A mock jury can have anywhere from 6 to 30 members
and can be divided into 2 or more independent jury panels for 2 or more independent
deliberations. Most trial lawyers and consultants use this type of mock jury or ―mini trial‖
process in the later stages of the litigation. The presentation includes video tapes or in-
person testimony by witnesses. It is very much like a summary jury trial after which the
jury is instructed about the law and the jury’s deliberations are video taped to see their
reaction to the case and its proofs. If two or more separate and independent jury panels
are used they might each get different issues to decide or the panels may be ―stacked‖ to
favor one or more predominant jury bias. For example we try to get a separate ―Gen X‖
panel of younger profile in addition to a truly mixed group. Vesper, ―The Seinfeld
Syndrome‖, TRIAL; see also, Sections VI B-Selected Bibliography on Focus Groups.

                                     C. WHY USE A FOCUS GROUP?

   1.    Trial lawyers and their staffs are not always the best and most accurate barometers of community
        values.
  As a trial lawyer, I can often wrap myself and my staff emotionally too tight around our
individual clients, their causes and their crises. Once immersed in the case, we lose
objectivity and perspective. Then, when faced with the wind chill factor of trial, we can
often spin our wheels in emotional cul-de-sacs of hyperactivity and last minute details
which make us lose the larger perspective. Trial lawyers and our helpers seldom
appreciate the weight of community opinion on certain issues and how non-lawyers will
highlight and prioritize issues.
   2.    Test Balloon Your Trial Strategy and Theories
   Most issues identified on our ubiquitous legal pads as being good and bad in the case
will also be viewed that way by the lay members of a focus group. However, it is no
longer surprising to me that the ―key evidence‖ we trial lawyers think is so important to
our clients’ success has little or no real decision-making importance or judgmental value
to everyday people. Contributory negligence or comparative fault, under certain
circumstances, loses or gains importance; a jury charge about ―failure to warn‖ can
become a non-issue in certain settings; the local climate of ideas and attitudes should be
tested before you assume that you and/or your staff know all the issues which will strike a
responsive nerve in your jury. Focus groups not only help with trial themes, they also
warn about hidden ―land mines‖. Focus/Mock Juries can help show you what issues to
stress, eliminate and illustrate.
   3.    Refresh and Rehearse Your Trial Technique
  No matter how often we talk to people on the street, read local newspapers, listen to
local talk radio shows, it is always a refreshing reminder that an important part of trial
preparation is to revisit with non-lawyers what we believe our client’s case is all about.
Hear from ―the public‖ we serve what they find to be the real issues from their
unobstructed and uninvolved ground level views.
                                                                                                              50
   Rehearsal of voir dire, opening and summation style can only improve our ability to
communicate. Notwithstanding the fact that all trial lawyers have keen minds, great
speaking voices, and unparalleled confidence, some of our mannerisms may need to be
altered or polished.
   4.   New Ideas and Feedback From Common People
   I have never met a focus group or mock jury I did not like (or at least I never met one I
did not learn from). In some way, every focus group/jury gave me or my brother/sister
trial lawyer a new theme, catch phrase, word or idea that was as good or better than those
cerebrated and designed by a trial lawyer. Focus groups help style or reshape the
rhetorical questions we ask in our openings and summations by giving us the expression,
vernacular or slang of the community. From popular songs, folk lore and even local
legends you can find ideas and catch phrases to use in your voir dire. For example: people
in Atlantic City know a ―shoobee‖ (any out-of-towner; in the 1920s such visitors to
Atlantic City carried their lunch and possessions in a shoe box); in North Jersey, residents
call the annual tourists ―Bennies,‖ people in Brooklyn call fire hydrants ―Johnny Pumps,‖
people in Bridgeton know what a ―simple man‖ is all about (from the country and western
song). Every community has its own homegrown sounds, rhythms and pet phrases. Learn
them and you will learn more about that community’s value system. You will more
effectively and naturally communicate to the jury in your next voir dire.
   5.   The Best Way to Prepare Your Discovery and Trial Themes
  In my opinion, brainstorming the case with a focus/mock jury gives you better ideas for
discovery and trial, helps soften your conversational tone for your voir dire, and shapes
your opening statement theme and narrative storytelling style according to the customs,
practices and living language of the jury pool. To tell your client’s ―story‖ you must
uncover and use the moral and emotional issues which the jurors will bring with them to
Court. You must start to explore this information before you get to the jury selection
process.
   6.   As an Alternative for Voir Dire, Pre-Market Your Questions or Supplemental Jury Questionnaire
   In jurisdictions like New Jersey, where most judges do not permit attorney-conducted
voir dire, using a focus/mock jury will nevertheless help you design written jury
questions for the trial judge or a written supplemental jury questionnaire (SJQ) for the
jury to answer. Identifying words, phrases or issues that cause the focus group to like or
dislike your client’s cause of action, theories of liability, and damage claims, or your
client as an individual, as well as the corporate or individual defendant, will assist in not
only preparing written questions for the jury to answer prior to the voir dire (the SJQ),
but also some questions you submit for the judge to ask the jury. The focus/mock jury
will aid in prioritizing important areas of inquiry for your voir dire.

              D. WHO SHOULD ARRANGE THE FOCUS GROUP/MOCK JURY?

  Should you engage a professional jury consultant to help design or re-design your trial
themes? My answer is a qualified ―maybe ... and it always depends ...‖ Maybe you have
the right case, where the damages, or your client, or your reputation, demand that you do

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   the very best—not just what a reasonably competent trial attorney would do to prepare for
   voir dire. And it always depends upon the cost-benefit analysis and the seriousness of the
   case to your client. To do the very best job with relatively little budget constraints, using a
   trained professional consultant can be more efficient than organizing an ad hoc focus
   group on your own. However, most times the smaller case does not justify spending
   $2,000-$5,000 for a jury consultant.
     Organizing your own focus/mock jury can be done at little cost if you are willing to put
   forth the time and effort. For a very modest outlay you will receive disproportionately
   greater benefits. Arrangements can be made by you, your staff, friends or spouse,
   understanding, of course, the need for objectivity. It can also be accomplished through
   your former community ―groupies‖—the waiters, waitresses, bartenders, barbers, cabbies,
   etc. who all love to watch and listen to real life ―soaps‖ and live ―court room dramas‖. As
   long as the prospective panel members are not tainted or predisposed to the rightness or
   wrongness of the case, any presentable, articulate person can randomly solicit people at
   public meeting places such as shopping centers, coffee shops, libraries, civic clubs or
   even dating services to join your focus group.

                              E. SHOULD THE CLIENT BE PRESENT?

      In my experience, the client should not be seen by the focus group. The face-to-face
   meeting of a client with the group/jury tends to establish a bond and breaches objectivity.
   It is also a distraction to the jurors. Unless the client’s demeanor as a witness is one of the
   serious issues you want the group to address, the client should be out of sight during the
   entire exercise. It is better, for many reasons, to have the client in a separate room,
   watching a closed circuit TV monitor or post-session videotape of the focus group’s
   deliberation. I have found that this ―separate but still a part of‖ the focus group/jury
   process has the best and most rewarding impact on my clients. At a minimum, it is a good
   idea to show the clients the video taped session.
      If a client’s demeanor is a serious issue and needs to be tested, then videotape the
   client’s deposition or have the client read answers to interrogatories and conduct a
   simulated direct cross-examination on videotape for the focus group to view.

                            F. WHAT GROUP SHOULD BE FOCUSED?

  From wherever assembled, the focus group/jury should be representative of your jury pool
and/or as diverse as possible, representing a demographic cross-section of your community. They
should be young and old; employed, unemployed and retired; students and teachers; college grads
and non-college educated; there should hopefully be one or more representatives from the leading
employer, industry or trade in the area. If possible, old outdated jury panel/venire lists can be
obtained from the trial vicinage, and a representative selection of people from prior jury venires
can be contacted and solicited to participate in your group. If you and your client want to get the
―worst case scenario‖, you can do what some trial lawyers and consultants recommend: that is,
use the most conservative group to focus and test the case.

                                G. WHERE AND HOW TO FOCUS?

                                                                                                52
     1.   In or Out of Your Law Office
  There are pros and cons for conducting focus/mock juries in your office. On one hand, if you
have the proper layout, enough conference space/rooms, you will certainly impress people with
your professional lodgings. You may even attract new clients. On the other hand, once the
group/jury knows your office is conducting the exercise, they may tend to slant, shape or ―spin‖
their comments to gain favor or be hospitable. If your office is conveniently located and laid out
the group’s dynamic opinion can be kept objective, it is usually a great savings of time and
money to conduct in-office focus/mock juries.
   Conducting a focus/mock jury out of your office in a conference center, hotel, VFW hall,
library, church hall/cafeteria or other public meeting place can accomplish a greater diversity in
that more group members might be able to travel to that central location more conveniently than
to your office. Additionally, they may be more objective and you may still impress them enough
to attract new clients.
     2.   Short Term vs. All Day Sessions
  The best focus/mock juries I have conducted or participated in are usually half-day sessions.
On a Saturday morning when people know they will be paid and fed, I find they are more willing
to put in a good half day to earn their salary. I also find people are willing to serve for
approximately ten to fifteen dollars per hour. Of course, a complex case with a mock jury may
require a full day or even several days.
  At night, usually after two or three hours, the attention span of most people wanes and they are
less interested in getting involved in long and complicated discussions or analyses. Planning the
focus group around a block of time needs to be coordinated around where and when you can
obtain the most diverse and objective attendees.
     3.   How Many Should Attend
   It is my experience, as well as that of many trial lawyers and consultants, that a ―focus group‖
requires a minimum of four (4) people and a maximum of twelve (12) to insure a proper group
dynamic. Any less than four (4) people creates problems such as discussion ―bottlenecks‖ or
―deadends‖; and any more than twelve (12) tends to increase the amount of ―social loafing‖, that
is, more people will choose not to contribute. The ideal number to seek in any of your focus
groups is eight (8).
  Another practical consideration in selecting the number of focus group participants is to adapt
the number of jurors used in your jurisdiction. Whether the jury will be six, eight or twelve, it is
always enlightening to see the group dynamic develop during deliberations.
     4.   Friends vs. Independent Paid Consultants
   I prefer to have people on focus groups who are not present or prior clients, relatives of clients,
friends and relatives. I want a totally independent, off the street individual, perhaps even a juror
who sat on a similar case in a prior trial in the same courthouse, who is willing to put in two to
four hours at $10 to $15 per hour. It is easy to get names and addresses of jurors who served on
prior juries (even the ―no cause/no liability‖ juries) by going to the court clerk’s office or
contacting the trial lawyers involved in the prior case. From these ―prior juries‖ or from fresh and
independent viewpoints I believe you and your ―moderator‖ will obtainhonest impressions of
53
what is right and wrong about your client’s case On the other side of the spectrum, Gary
Pillersdorf from New York City uses a ―take-out Chinese dinner‖ in his living room at home or
office conference room for his invited friends, neighbors (and future clients) to help focus his
clients’ cases.
     5.   How to Present the Case and Lead the Group Discussion
   I suggest two people present ―or try‖ the case: one presenting plaintiff’s claims/proofs for
liability and damages and the other presenting the defense positions/proofs to liability and
damages. They can be lawyers or paralegals. Depending on who knows the case best, it may be
better for you the trial lawyer to actually take the adversarial position of the defense attorney and
leave another attorney or staff member to present the plaintiff’s case. From this new perspective
you may also gather some new insights as to the strength or weaknesses of your proofs.
  Another suggestion before presentations are made is to tell the focus groups that the lawyers
who are presenting the information are not actually litigating the case. The lawyers have been
selected to present the material, because they are skilled and have studied the facts. In this way,
you can help avoid any bias or focus group member trying to please one side or the other based
upon who they like.
  You should also have a moderator who will act as the ―judge‖ to generally instruct jurors about
the law, help direct their discussions and keep their ideas flowing on the issues you wish to test
market.
  I suggest you use as many simplified exhibits, charts and lists as possible to make it quick and
easy for the jurors to ―learn‖ the case. Do not worry about formality. Rules of Evidence. Only use
evidence you know will be admitted. If certain witnesses are ―key‖ to your case, then either
videotape them or have someone ―play their part‖ for the group to assess their credibility and the
inherent strengths and weaknesses of their factual/opinion testimony.
     6.   Forms For Screening, Recording Reactions and Confidentiality and Attorney Work Product
  Always ensure that your focus group/mock jury discussions about case facts, opinions, strategy
and ideas for advocacy are protected as attorney work product. When using a group of people off
the street, friends or family, some enforceable written form should be signed by each of them
acknowledging that what is being discussed is part of an attorney-client work product, that they
are acting as a paid consultant and they are thereby cloaked with the attorney-client privilege.
Also, use forms for screening and background information of the group members as well as
recording their comments and reactions.
  For juror background data, the only information needed to qualify a person for participation in
the study should be obtained during the preliminary interview. This would include certain
demographic questions needed to match the group demographics to the venue. More detail may
be gathered at the time of the focus group/mock jury. This will save considerable expense as it
relates to telephone interviews. Professional recruiters will charge by the question or as a
function of the length of interview. Also, all background questions not demographic in nature
should be directly relevant to the case. (i.e. no need to ask medical background questions in a
computer patent case) [See Appendix Focus/Mock Jury Forms]
     7.   When to Focus

54
  Before commencing discovery, a critical deposition, an important settlement conference and
even before suit, focus groups can be employed to determine what legal and non-legal issues
should be discovered and upon which your limited litigation resources are expended. From my
experience with product liability focus groups and mock jurors, the two most frequently asked
question is ―Were there any similar incidents before?‖ and ―Did the manufacturer know about the
prior incidents caused by the product?‖ Therefore, in most products cases, we insist upon full
discovery of ―OSI‖ (other similarly incidents).
   Depending on the importance of the case and how perfectly you want to plan and prepare for
trial, a focus group can be conducted one week or several months prior to trial. If given enough
time, this would assist in not only preparing your trial themes, but also your voir dire line of
questions, or the written submissions or SJQs, or your opening statement.




C. PREPARE FOR & CONDUCT BETTER DEPOSITIONS
        (Reprinted with permission of the authors – Tom Vesper and Mark Kosieradzki –
                                    and the publisher, West Group)

 HOW TO SET DEP “GROUND RULES” – MOTION FOR OR STIPULATE TO PROTOCOLS


               A.           WHY SET ANY “GROUND RULES”


         Some attorneys scrupulously follow the rules, some have a more relaxed approach or
―situational ethic‖ about the rules, and some litigators flat out ignore and/or abuse the rules. Before
launching upon discovery depositions it may avoid future problems to obtain the agreement and/or
court order to follow the ground rules or ―protocols‖ for taking depositions. The purpose for setting
the protocol is not just to avoid unsightly and unprofessional arguments in front of clients and
witnesses. One very important purpose is to assure everyone that when important witnesses are being
deposed, they will be giving their honest testimony, and not the defending lawyers’ version of the
truth. If your adversary will not agree, we recommend obtaining a court order; if for some reason the
court will not order the protocols to be followed, then we recommend that the protocols be
announced at the commencement of the first (and possibly every) discovery deposition. For your use
we provide a brief in support of a motion [See Appendix 14B], court ordered stipulation [See
Appendix 14C], and list of the protocols [See Appendix 9B] for you to bring to every depositions.

                       B.      WHAT ARE THE “GROUND RULES”

       To prevent any misunderstanding between counsel, Plaintiff counsel should try to obtain
consent to follow the protocol set forth immediately below for all depositions.

                                       DEPOSITION PROTOCOL

55
     (1)   Depositions shall be conducted in compliance with the Federal Rules of Civil
           Procedure.

     (2)   During all depositions counsel shall adhere strictly to Rule 30(d)(1) and (3),
           Fed.R.Civ.P. No objections may be made, except those which would be
           waived if not made under Rule 32(d)(3)(B) (errors and irregularities) and
           those necessary to assert a privilege, to enforce a limitation on evidence
           directed by the court, or to present a Rule 30(d) motion (to terminate bad-
           faith deposition). Objections to form shall be stated ―objections as to form‖.
           Any further explanation is inappropriate and prohibited. There shall be no
           speaking objections. An objection made by one party preserves the objection
           for all other parties. Substantive objections are preserved by Rule 32(d)(3)(a)
           and are therefore unnecessary.

     (3)   Neither a deponent nor counsel for a deponent may interrupt a deposition
           when a question is pending or a document is being reviewed except as
           permitted in Rule 30(d)(1).

     (4)   A party may instruct a deponent not to answer only when necessary to
           preserve a privilege, to enforce a limitation on evidence directed by the court,
           or to present a motion under paragraph (3) [of Rule 30(d)]. Whenever
           counsel instructs a witness not to answer a question, he or she shall state on
           the record the specific reason for such an instruction, the specific question,
           part of a question, or manner of asking the question, upon which counsel is
           basing the instruction to answer the question.

     (5)   A business entity responding to a Fed.R.Civ.P. 30(b)(6) notice of taking
           deposition shall designate proper individuals for the deposition and to ensure
           that the designated individuals are properly prepared to testify regarding the
           categories designated in the deposition notice. The deponent organization
           must immediately provide a substitute knowledgeable witness if the testifying
           designee is deficient in responding to the questions within the scope of the
           matters for which he/she has been designated. Any question that could
           reasonably be expected to produce relevant facts is permissible, including
           those outside the scope of inquiry designated in the Rule 30(b)(6) deposition
           notice. Corporate designation of a witness for a Rule 30(b)(6) does not
           prevent a non-30(b)(6) deposition of the same witness.

     (6)   Any depositions may be videotaped, in addition to being recorded
           stenographically.




56
               C.      OBSTRUCTIVE DEPOSITION TACTICS ARE PROHIBITED

     The landmark case of Hall v. Clifton Percision, 150 F.R.D. 525 (E.D, Pa. 1993) identified
the obstructive deposition tactics that will not be allowed. The Court said:

        ―The purpose of a deposition is to find out what a witness saw, heard or did -- what
        the witness thinks. A deposition is meant to be a question and answer conversation
        between the deposing lawyer and the witness. There is no proper need for the
        witness's own lawyer to act as an intermediary, interpreting questions, deciding which
        questions the witness should answer, and helping the witness formulate the answers.
        The witness comes to the deposition to testify, not to indulge in a parody of Charlie
        McCarthy with lawyers coaching or bending the witness's words to mold a legally
        convenient record. It is the witness -- not the lawyer -- who is the witness.‖

The Court went on to explain that:

        ―. . . depositions are to be limited to what they were and are intended to be: question
        and answer sessions between a lawyer and a witness aimed at uncovering the facts in a
        lawsuit. When a deposition becomes something other than that because of strategic
        interruptions, suggestions, statements, and arguments of counsel, it not only becomes
        unnecessarily long, but it ceases to serve the purpose of the Federal Rules of Civil
        Procedure: to find and fix the truth.3‖

       The ―Hall Standards‖ have been recognized by courts throughout the country.4 In sum, they
provide:

        1.          A witness may only seek clarification, definition, or explanation of words, questions,
              or
                    documents from deposing counsel, not from counsel for the witness.


        3
            Hall, 150 F.R.D. at 527.   (Emphasis added.)
        4
            Armstrong v. Hussmann Corp., 163 F.R.D. 299, 301-05 (E.D. Mo. 1995); ML-Lee Acquisition Fund II, L.P.
Litigation, 848 F.Supp. 527, 567 (D. Del. 1994); Bucher v. Richardson Hosp. Authority, 160 F.R.D. 88, 94 (N.D. Tex.
1994); Holland v. Fisher, 1994 WL 878780 (Mass. Super. Ct.); Van Pilsum v. Iowa State University of Science and
Tech., 152 F.R.D. 179, 180-81 (S.D. Iowa 1993); Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 58-59 (E.D.
Pa. 1993); Deutschman v. Beneficial Corp., 132 F.R.D. 359 (D. Del. 1990); In Re: Amezaga, 195 B.R. 221 (Bankr.
D.P.R. 1996); Damaj v. Farmers Ins. Co., 164 F.R.D. 559 (N.D. Okla. 1995); Bucher v. Richardson Hosp., 160
F.R.D. 88 (N.D. Tex. 1994); Odone v. Croda Int'l, 170 F.R.D. 66 (D.D.C. 1997); Acri v. Golden Triangle
Management Acceptance Co., 142 Pitt. Legal J. 225 (Pa. Ct. 1994); Paramount Communications Inc. v. QVC
Network, Inc., 637 A.2d 34, 55 (Del.Supr. 1994); Dominick v. Troscoso, 1996 WL 408769 (Mass.Super. 1996);
Burrows v. Redbud Community Hosp. Dist., 187 F.R.D. 606 (N.D. Cal 1998); Quantachrome Corp. v.
Micromeritics Instrument Corp., 189 F.R.D. 697(S.D.Fla. 1999); Collins v. International Dairy Queen, Inc., WL
293314 (M.D.Ga. 1998); Chapsky v. Baxter V. Mueller Div., Baxter Healthcare Corp., 1994 WL 327348 (N.D. Ill
1994); Sinclair v. Kmart Corp., 1996 WL 748038 (D.Kan. 1996); Boyd v. University of Maryland Medical Systems,
173 F.R.D. 143 (D. Md. 1997); Metayer v. PFL Life Ins. Co., 1999 WL 33117063 (D.Me. 1999); Phinney v
Paulshock, 181 F.R.D. 185 (D.N.H. 1998); Mruz v. Caring, Inc., 107 F.Supp.2d 596 (D.N.J. 2000); Prudential Ins.
Co. of American v. Nelson, 11 F.Supp. 572 (D.N.L 1998); and Teletel, Inc. v. Tel-Tel Us Corp., 2000 WL 1335872
(S.D.N.Y 2000).

57
        2.              No objections may be made, except those which would be waived if not made
                        under Fed.R.Civ.P. 32(d)(3)(B) (errors and irregularities) and those necessary
                        to assert a privilege, to enforce a limitation on evidence directed by the court, or
                        to present a Fed.R.Civ.P. 30(d) motion (to terminate bad-faith deposition);

        3.                                                                                               The      only
                        permissible instructions not to answer a question are: to preserve a privilege; and, to comply
                        with court directed limitation on evidence;


        4.              Counsel and their witness-clients shall not engage in private, off-the-record
                        conferences during depositions or during breaks or recesses.

        5.              Witness-counsel conferences are a proper subject for inquiry by deposing
                        counsel who may inquire whether there has been any witness coaching and, if
                        so, what;

        6.              Counsel who confers with their client must disclose that fact on the record, and
                        disclose the purpose and outcome of the conference;

        7.              Deposing counsel shall provide to the witness’s counsel a copy of all documents shown to
                  the
                         witness during the deposition, and may do so either before the deposition begins or
                         contemporaneously with the showing of each document; and

        8.              The witness and the witness’s counsel do not have the right to discuss documents privately
                        before the witness answers questions about them.

                              D. THE GOOD, BAD & UGLY OBJECTIONS

        APPROPRIATE OBJECTIONS. Under Fed.R.Civ.P. 32(d)(3)(A), objections are preserved unless
the ground of the objection is one which might have been obviated or removed if presented at that
time.5 Therefore, it is only necessary to object at a deposition where the ―form‖ of the question (not
the nature of the question) is objectionable and a ―seasonable‖ objection would provide an
opportunity to correct the form.6 Substantive objections are preserved by Rule 32(d)(3)(a) and are
therefore unnecessary. Objections that are not required to be asserted at the deposition are
inappropriate.7 The purpose of allowing most objections to be raised later is to permit the preliminary
examination to proceed without constant interruptions.8 Interference with the orderly flow of the


            Fed.R.Civ.P. 32(d)(3)(A).
        5


        6
            William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before
Trial, §11:493 at 11-99.

        7
            Herr & Haydock, Civil Rules Annotated (3rded.) §30.22 at 107 (1998).

        8
            Id.

58
deposition and the meaningful elicitation of testimony by excessive objections is prohibited.9

        Thus, the objecting party may wait until trial (or just prior to trial) to make the objection when,
and if the deposition testimony is offered into evidence.10 To the extent that objections are made,
deposition objections are treated differently than trial objections - the testimony continues subject to
the objections, and the objections are preserved for trial.11

        TYPE AND MANNER OF OBJECTION. Rule 30(d)(1) provides for the type and manner in which
objections during a deposition may be made. Objections are to be non-argumentative and non-
suggestive.12 The Advisory Committee Notes following Rule 30 offer insight into the purpose of this
rule:

        ―Depositions frequently have been unduly prolonged, if not unfairly frustrated, by
        lengthy objections and colloquy, often suggesting how the deponent should respond . .
        . [o]bjections . . . should be limited to those that under Rule 32(d)(3) might be waived
        if not made at that time ... [o]ther objections can ... be raised for the first time at trial
        and therefore should be kept at a minimum during a deposition. "Directions to a
        deponent not to answer a question can be even more disruptive than objections. The
        second sentence of new paragraph (1) prohibits such directions except in the three
        circumstances indicated ... In general, counsel should not engage in any conduct
        during a deposition that would not be allowed in the presence of a judicial officer.
        The making of an excessive number of objections may itself constitute sanctionable
        conduct."13

               Protection can become a cover for obstruction.14 Therefore, counsel should avoid the
prohibited practice of engaging in so-called Rambo Tactics where counsel attacks or objects to every
question posed, thus interfering with, or preventing, the elicitation of any meaningful testimony and
disrupting the orderly flow of the deposition.15

              SPEAKING OBJECTIONS. Speaking objections occur when the defending attorney
actually engages in coaching the witness, attempting in the course of articulating the objection to

        9
        See In Re: Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 619 (D. Nev. 1998), citing
American Directory Service Agency, Inc. v. Beam, 131 F.R.D. 16, 18-19 (D.C.D.C. 1990).

        10
             In Re: Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998).

        11
           Fed.R.Civ.P. 30(c); W.R. Grace & Co. v. Pullman Inc., 74 F.R.D.80 (D.C. Okla. 1977); Drew v.
International hd. Of Sulphite and Paperworks, 37 F.R.D. 446 (D.C. D.C. 1965).

        12
             Fed.R.Civ.P. 30(d)(1).

        13
             Fed.R.Civ.P.30(d), Advisory Committee Note. (Emphasis added.)

        14
          William Fortune, et al., Modern Litigation and Professional Responsibility Handbook: The Limits of
Zealous Advocacy, n. 267, § 6.7.4 at 264 (1996).

        15
             American Directory Service Agency Inc. v. Beam, 131 F.R.D. 15, 18-19 (D.C. D.C. 1990).

59
direct the witness’ attention to what the ―right‖ or ―correct answer should be.‖16 Such objections are
prohibited. ―Objection to form‖ should be sufficient explanation to notify the interrogator of the
grounds for the objection, and thereby allow revision of question.17 Any further explanation is
inappropriate.

               E.        “I DON’T UNDERSTAND” IS NOT AN OBJECTION

               DEPONENT’S LACK OF UNDERSTANDING. If the deponent does not understand the
question, or the meaning of a word or phrase, or even if the deponent has a question about a
document, the deponent should ask the questioning attorney. If the deponent lacks knowledge or
understanding, then the deponent should say so, not seek understanding or direction about how to
answer
the question from his or her attorney. The interrogating counsel has the right to the deponent’s
answers, not an attorney’s answers.18

                LAWYER’S LACK OF UNDERSTANDING. A lawyer’s purported lack of understanding is
not proper reason to disrupt the deposition.19 It does not matter if an attorney does not understand the
question. It is only the witnesses’ understanding of the question which is of significance.

               CLARIFICATIONS. Interruptions and ―clarifications‖ of questions by counsel for the
witness are improper.20 It is the witness who must ask for clarification if the witness does not
understand the question.

                         F.           INSTRUCTIONS NOT TO ANSWER

                A party may instruct a deponent not to answer only when necessary to preserve a
privilege, to enforce a limitation of evidence directed by the court, or to present a motion under Rule
30(d)(4)for protective order.21 Instructing witness not to answer a question for any other reason such
calling for inadmissible facts is sanctionable.22 ―It is not the prerogative of counsel, but of the court to
        16
           Applied Telematics, Inc., v. Sprint Corp., WL 79237 (E.D. Pa, 1995), citing the Federal Bar Council
Committee on Second Circuit Courts, “A Report on the Conduct of Depositions,” 131 F.R.D. 613, 617 (1990),
quoted by Virginia E. Hench, Mandatory Disclosure and Equal Access to Justice: The 1993 Federal Discovery
Rules Amendments and the Just, Speedy and Inexpensive Determination of Every Action, 67 Temple L. Rev.
179, 218, n. 182 (1994).

        17
             See 8A Wright, Miller, & Marcus, Federal Practice and Procedure Civil 2d., § 2156 at 206 (1994).

        18
             In Re: Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D.Nev. 1998).

        19
             Applied Telematics, Inc. v. Sprint Corp., 1995 WL 79237 (E.D. Pa, 1995).

        20
             Unique Concepts, Inc. v. Brown, 115 F.R.D. 292 (S.D. NY 1987).

        21
             Fed.R.Civ.P. 30(d)(1).

        22
            Boyd v. University of Maryland Medical Systems, 173 F.R.D. 143 (D.Md. 1977); International Union
of Elec., Radio & Mach. Workers AFL-CIO v. Westinghouse Elev. Corp., 91 F.R.D. (277, D.C. D.C. 1981); and
Preyer v. U.S. Lines, Inc., 64 F.R.D. 430 (E.D. Pa. 1973).

60
rule on objections.‖23

          G.        CONFERRING WITH WITNESSES DURING DEPOSITION

                Depositions are to proceed in the same manner as the examination and cross-
examination of witnesses at trial.24 The United States Supreme Court has clearly defined the role of
counsel during the testimony of the client.
―[w]hen a defendant becomes a witness, he has no constitutional right to consult with his lawyer
while he is testifying. He has an absolute right to such consultation before he begins to testify, but
neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit
of counsel’s advice.25‖

        During a civil trial, a witness’ attorney does not sit beside him in the witness stand telling him
what to say or refrain from saying. Simply because the fact finder is not present in the deposition
room does open the door to such behavior.26 The candid answers of the witness, for better or for
worse, are what the questioner is entitled to, not merely a repetition of the words opposing counsel
places in the witness’s ear.27

         Although an attorney has a legal and ethical duty to prepare a client before the deposition,
preparation, by definition, occurs before – not during – the event. Once the deposition begins, the
preparation period is over and the witness is on their own.28 If the attorney did not adequately prepare
the client before the deposition, then the attorney and the client must suffer the consequences.29




         23
              Kelvey v. Coughlin, 625 A.2d 775, 776 (RI 1993); Shapiro v. Freeman, 38 F.R.D. 308, 311 (S.D.N.Y.
1965).

         24

Fed.R.Civ.P. 30(c).

         25
              Perry v. Leeke, 488 U.S. 272, 280 (1989).

         26
              See Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).

         27
              Baer & Meade: The Conduct and Misconduct of the Deposition 64 APR N.Y. St. B.J. 16 (1992);
Helmers, Depositions: Objections, Instructions & Sanctions, 33 S.D.L.Rev. 272 (1987/1988).

         28
          Alexander Grant & Co., Litigation, 110 F.R.D. 545, 547 (S.D.Fla. 1986); Nutmeg Ins. Co. v. Atwell,
Vogel & Sterling, 120 F.R.D. 504 (D.C.La. 1988); Smith v. The Logan Sport Community School Corp., 139 F.R.D.
647 (1991); and Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).

         29
         Dickerson, The Law and Ethics of Civil Depositions, 57 Md.L.Rev. 273, 286 (1998); and Eggleston v.
Chicago Journey Plumbers Local Union No. 30, 657 F.2d 890, 902 (7th Cir. 1981).

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