In this episode, and over the next few, Jim Garrity analyzes some of the better-known techniques or methods of conducting deposition cross-examinations. He begins with the Pozner-Dodd method, based on the book Cross-Examination: Science and Techniques, by Larry Pozner and Roger J. Dodd. As Jim explains, there isn't a single "best way" to question or cross-examine witnesses. The path to world-class examination styles is being aware of the different approaches, understanding them, experimenting with each, and even possibly combining elements from several to develop your own style.

SHOW NOTES:

Pozner, Larry and Dodd, Roger J., Cross-Examination: Science and Techniques, 3d. Ed.

https://www.amazon.com/Cross-Examination-Science-Techniques-Larry-Pozner/dp/1632843919/ref=sr_1_4?crid=2OP2T6EBDBNI3&dib=eyJ2IjoiMSJ9.o49yLDTFRzsh1lO1WhQd4xBgkEuhYLH3obvuBC2GIdpGyzn1i0dg1lEzyMEYoFcB.NPgrs8W1727PEigEc3OXABbQt85juirYS59s5B12ids&dib_tag=se&keywords=pozner+dodd&qid=1772489570&sprefix=pozner+dod%2Caps%2C227&sr=8-4

In this episode, Jim Garrity - the leading expert in the country on deposition strategies and tactics - rolls out another spectacular deposition strategy you won't find anywhere else. It's the application of the PACE Method to your deposition scheduling. It will change how you draft your deposition notices forever.

PACE - an acronym for Primary, Alternate, Contingency, and Emergency - was devised by the U.S. Military to ensure that if the primary plan goes haywire, there is a Plan B: an immediate go-to backup. And a Plan C, and a Plan D. It sharply increases the odds of mission success because there are no debates or delays when one plan fails. Everyone switches to the next layer of redundancy.

Here, Garrity tells you how to apply PACE to deposition scheduling, so that when your primary plan for deposing a witness - say, an in-person deposition - cannot proceed, you (and all other participants) immediately switch to your alternate plans.

As always, thanks for listening to the number #1 podcast in the world devoted exclusively to deposition strategies and tactics for litigators handling civil, administrative, arbitrative, and criminal proceedings.

In this episode, Jim Garrity urges you once again (see Episode 7, Audiotaping Your Depositions) to independently audiorecord your depositions. Apart from all the prior, excellent reasons he discussed, there's a new one, and it stems from technical glitches that disrupt the reporter's audio and video feed in a remote deposition. Give this one a careful listen!

SHOW NOTES

McGillvary v Riez, et al., Case No. 22-6430-MAS-JBD, 2025 WL 2962775 (D. New. Jersey Oct. 17, 2025) (memorandum order on, among other things, a motion to suppress the transcript of the plainest deposition and to compel production of the audio recording of the deposition, based on allegations that the transcript contained numerous errors and omissions) 

A must-listen episode with actionable guidance for litigators and trial teams who want to keep depositions moving and the record clean. We break down the “you can answer” interjection: why it is usually unnecessary, how it inserts defending counsel into your Q-and-A, and how repetition disrupts tempo and shifts the witness from answering questions to seeking permission. You will get a ready-to-use preliminary instruction that tells the witness to answer after objections unless counsel clearly instructs “don’t answer” or the witness needs a rephrase. We also cover when to address opposing counsel on the record and how to frame the issue as coaching and delay. If the conduct escalates, we explain how Rule 30(d)(3)(A) supports suspending the deposition and seeking a protective order.

SHOW NOTES:

Sample preliminary instruction to minimize "You can answer" gatekeeping"

During this deposition, the lawyers may make objections from time to time. For example, you may hear one of the lawyers say objection, or object to the form. These objections are mainly for the court reporter and, if necessary, for the judge later. They’re not signals to you to stop or to wait for permission. The only time you may hesitate is if the objection you’ve heard is “don’t answer that question.” Otherwise, after objection, or if theres no objection, go ahead and answer the question that was asked, after you heard the objection. You should not turn to your lawyer after each question, or wait for your lawyer to say you can answer after each question. Just listen to the question, and if you understand it, answer it in your own words. The only time you should stop answering as if your lawyers objection is along the lines of don’t answer that question, or if you yourself don’t understand the question and need me to rephrase it. Otherwise, you should go ahead and answer the question.

They're baaaaack! In-person depositions, that is. In this episode, Jim Garrity discusses two brand-new court rulings that reflect a growing trend among judges to enforce noticed in-person depositions of parties and key witnesses. It's a subtle but striking shift away from remote depositions, which took root during the COVID pandemic. Jim discusses the rulings in detail, as well as an interesting observation by an Illinois federal judge about the behavioral psychology that favors face-to-face confrontations. Finally, Jim offers practical guidance on arguments to make for and against remote depositions in your cases, including the two most powerful arguments to make when seeking an order requiring a deponent to appear in person.

SHOW NOTES

James, et al. v. Thomas, Case No. 1:24-CV-00061-RGJ-LLK, 2025 WL 2945597 (W. D. Ky. Oct. 17, 2025) (denying motion for protective order sought by three plaintiffs - who reside in New York, New Jersey, and Florida - to avoid traveling to Kentucky for their depositions)

Crutchfield v. Experience Information Solutions, Inc., et al., Case No. 25-CV-5697, 2025 WL 293-8760 (N. D. Ill. Oct. 16, 2025) (denying motion for protective order, filed by Florida-based plaintiff, that sought to avoid an in-person deposition in Chicago)

When a 30(b)(6) representative is deposed, the testimony is that of the organization, not of the individual answering the questions. However, in the heat of battle, it can be challenging to remember this distinction. Questions in 30(b)(6) depos that use words like "you" - and answers that use words like "I" or "me" - can blur the roles and lead an examiner to see the testimony as also being that of the witness individually. But it isn't. Psychologists refer to this confusion as an "attribution error," meaning that we may attribute the testimony to the wrong source.

This confusion can be fatal to a claim if the representative is also a key witness individually and wasn't deposed separately. Today, Jim discusses a brand new court ruling where a federal judge dismissed a claim against an individual defendant (and key witness) who was only deposed as a 30(b)(6) deponent. The question there was, when a 30(b)(6) witness says “I,” who’s really speaking—the individual or the entity? Learn how that 30(b)(6) deposition in Ademi wasn't enough to survive summary judgment, and what every litigator must do to avoid the same trap. Essential listening for anyone taking or defending corporate rep depositions.

SHOW NOTES

Ademi, et al. v. Central Park Boathouse, LLC, and Dean Poll, individually, No. 22-cv-8535 (S.D.N.Y. Sept. 23, 2025) (summary judgment granted in favor of individual defendant where plaintiff’s counsel only deposed defendant in a 30(b)(6) capacity and, thus, had no testimony from the witness himself)

Fed. R. Civ. P. 30(b)(6) (designated representative rule)

King v. Pratt and Whitney, 161 F. R. D. 275 (S. D. Fla. Apr. 27, 1995) (rule governing representative depositions doesn’t limit scope of questions that can be asked, beyond topic list); Joseph v. Chronister, et al, 2019 WL 8014505, Case No. 8:16-cv-274-T-35CPT (M. D. Florida January 29, 2019) (scope of designated-representative deposition is not strictly confined to topics set forth in notice; further noting the twin benefit of this type of deposition, being that it limits the number of people within a corporation to be deposed, and prevents bandying); See Marksberry v. FCA US LLC, 2021 WL 2142655, No. 19-2724 (D. Kan. May 26, 2021) (lawyers may object to topics as “outside the scope” of that listed on the 30(b)(6) notice, and such objections have been held to be permissible, but the witness “must nevertheless answer the question because Fed. R. Civ. P. 26(b) - not the deposition notice defines the scope of discovery”).

In this episode, Jim Garrity uses a pending bar disciplinary proceeding against a Florida lawyer as a potent reminder of the consequences of failing to ensure that your conversations during breaks in remote (virtual) depositions are not heard by others. As always, he offers practical guidance to help you avoid this potentially career-ending mistake. Citations to the referenced case are in the show notes.

SHOW NOTES

Zoom community forum reporting audio feed despite activation of mute button (https://community.zoom.com/t5/Zoom-Meetings/Participant-on-mute-yet-I-can-still-hear-them/m-p/142674)

Excerpt from Zoom’s terms of service at https://www.zoom.com/en/trust/terms/ (You agree [that the software and services are provided “as is” and that Zoom makes no guarantee] . . . .that the services or software will...be...error free. . . . [Y]ou will be solely responsible for any damage to you resulting from the use of the services or software. The entire risk arising out of use or performance of the services or software remains with you”)

Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed February 1, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Respondent’s Response to Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed March 11, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Report of Referee, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed April 28, 2025); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Amended Initial Brief (attorney appealing Report & Recommendation of Referee), The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed September 15); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Today, Jim Garrity examines a critical issue in trial practice: whether an incomplete deposition—cut short when the deponent becomes unavailable—can be admitted at trial, particularly when the opposing party had no opportunity for cross-examination. Drawing on a new Sixth Circuit Court of Appeals decision and Rule 32 of the Federal Rules of Civil Procedure, Jim explores the court’s decision, the key factors trial lawyers should argue for or against exclusion, and the balancing test that should be used when essential testimony hangs in the balance. Discover practical strategies for both offering and opposing use of incomplete deposition transcripts in high-stakes litigation. Thanks for listening!

SHOW NOTES

Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)

Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)

Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)

Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)

Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)

Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)

In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)

This week’s roundup spotlights four brand-new deposition rulings from across the country. Two address when plaintiffs may appear remotely—what courts require, what constitutes good cause, and the practical showings that move the needle. The other two confront a quiet but consequential trial hazard: deposition testimony that’s read or played for the jury yet never placed into the record. (Many reporters pause their keyboards during read-ins, assuming the material is already transcribed—an easy oversight that can derail an appeal if the missing testimony is essential.) Join us for a concise tour of the standards, the pitfalls, and the simple steps to protect your record before it’s too late. It's another critical episode from the country's leading expert on depositions. Citations and parentheticals to every case discussed appear in our show notes. Have a great week!

SHOW NOTES

**Added after episode aired**

White v. Lozano, No. 13-24-00336-CV, 2025 WL 1788040, at *9 (Tex. App. June 30, 2025) (court reporter failed to transcribe the depositions or include the video recordings in the appellate record. This was error, but, because White's counsel did not object to the reporter's failure, he cannot now complain of it on appeal)

**Original Case List**

Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)

Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)

Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)

Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)

Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)

Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)

In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)North Carolina v. Johnson, No. COA24-451, 2025 WL 2408913 (N.C. Ct. App. Aug. 20, 2025) (court could not consider arguments in favor of reversal that were based on videotaped testimony played at trial but not placed into the trial record)

G.W. Aru LLC, et al. v. W.R. Grace & Co. No. CV JKB-22-2636, 2025 WL 2402194 (D. Md. Aug. 19, 2025) (court ordered parties to transcript deposition excerpts played at trial, and then file those excerpts by stipulation, where they had not been entered into the docket)

Shumaker v. Alarsi, et al., No. 1:23-CV-4-SA-DAS, 2025 WL 2418386 (N.D. Miss. Aug. 20, 2025) (rejecting motion for protective order, to allow plaintiffs to avoid 900-mile trip for in-person deposition, where the motion lacked any meaningful detail showing good cause for such an order)

Shah v. Fortive Corporation, et al., Case No. 1:22-cv-312 (S.D. Ohio Aug. 21, 2025) (rejecting plaintiff's request to appear remotely where travel to the forum of the litigation would require "40,000 miles of flight over 48 hours"; plaintiff failed to show distinct hardship or expense)

Are deposition expenses busting your budget? In this episode, Jim Garrity spotlights a clever strategy conceived by a southern California litigator to sharply cut the costs of deposition transcripts. It's yet another effort by trial lawyers to combat the insane costs of stenographic reporting, and one worth trying. The show notes point to seventeen relevant filings on this issue, four federal rules, and a website for a service that is actively helping lawyers cut deposition costs.

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SHOW NOTES:

Note: All filings listed below are from the case Black v. City of San Diego, Case No. 21-cv-1990-RBM-JLB (S.D. Cal. Mar. 27, 2025)

Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A) (initial application by Plaintiff) PACER Doc. 153

Defendants’ Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 160.

Declaration Of Casey Stark In Support Of Plaintiffs Motion For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP 30(b)(3)(A), PACER DOC. 153-1

Defendant Tutterow’s Notice Of Joinder In Defendant City Of San Diego’s Opposition To Plaintiffs Ex Parte Application For Leave To Conduct Deposition By Video And Prepare Transcript Using Voice Recognition, PACER Doc. 162.

Defendants Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 164

Plaintiffs Reply To Opposition To Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A), PACER Doc. 165

Second Supplemental Declaration Of Casey Stark In Support Of Plaintiff Motion For Leave To Conduct Deposition. Etc., PACER Doc. 170

Defendants Second Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 171

Order (Magistrate Judge) Denying Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology, PACER Doc. 172

Plaintiff’s Notice Of Objection To Order Denying Application For Leave To Conduct Deposition, Etc. PACER Doc. 173 (appealing magistrate judge’s order to district judge)

Defendant’s Response To Plaintiff’s Objection To Magistrate’s Order Denying Claims Application For Leave, PACER Doc. 174

Plaintiffs Opposition To Defendants Response To Player’s Objection To Magistrate’s Order Denying Plaintiff’s Application, Etc., PACER Doc. 175

Order (District Judge) Overruling Plaintiff’s Objections, PACER Doc. 178

Order Granting Joint Motion For Protective Order, PACER Doc. 32 (providing that certain information was to remain confidential)

Modified Protective Order, PACER Doc. 156

Readback.legal (reporting agency dedicated to reducing deposition -related costs; interview of Readback’s Chief Legal Officer in podcast episode 87)

1993 Committee Note to Fed. R. Civ. P. 26 (noting that where a deposition isn't stenographically recorded, transcripts are often later prepared by counsels' own law firms

Fed. R. Civ. P. 30(b)(3)(a) (allowing lawyers to capture deposition testimony by stenographic means only, audio only, video only, or any combination of the three)

FRCP 26(a)(3)(A)(ii) and FRCP 32(c) (providing that if counsel chooses to record a deposition by video only and plan to present it at trial or hearing, they must provide a transcript of the testimony to the other parties and the court)

Readback.legal (innovative and budget-friendly service advertised as "certified, court-admissible deposition service built for legal professionals who need clarity, speed, and accuracy, without relying on outdated stenography")