Should you cross-notice depositions set by another lawyer? How does cross-noticing benefit you? What's the chief reason you ought to cross-notice a deposition? We give you the scoop on this technical move, and tell you when it really serves its purpose. Don't miss the expert insights from national deposition expert Jim Garrity.

You're defending a deposition, and the form of the examining lawyer's questions are improper. What's the correct way to make your form objection? Is it just saying the word "Form"? Or, must you also state the legal basis for your form objection, such as "Form, leading?" Many courts have said that if your objection isn't properly asserted, you've waived it. So, which is it? In this episode, Jim Garrity tells you what courts have said, and he offers practical tips for making sure your objections stick. It's a critical lesson for litigators.

SHOW NOTES:

This podcast aired before references to full case citations were moved from the episode itself to the show notes. The following authorities were added after the first airing of this episode:

ChampionX, LLC. v. Resonance Sys., Inc. No. 3:21-CV-288-TAV-JEM, 2023 WL 11156855, at *6 (E.D. Tenn. Oct. 19, 2023) (citing cases for the proposition that "Generic objections to the form of the question are deemed waived. Fletcher v. Honeywell Int'l, Inc., No. 3:16-CV-302, 2017 WL 775852, at *1 (S.D. Ohio Feb. 28, 2017) (“To the extent that counsel made a generic objection to ‘form,’ but failed to specify the basis for the objection, the Court also considers those objections to be waived.” (citations omitted)); see also Henderson v. B & B Precast & Pipe, LLC, No. 4:13-CV-528 CDL, 2014 WL 4063673, at *1 (M.D. Ga. Aug. 14, 2014) (“[I]f a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question. Failure to do so waives the objection. Simply stating “objection to form” does not necessarily preserve the objection.”).

Many of your lawsuits involve events that can be physically demonstrated or re-enacted. Indeed, your success in pursuing your claims or defenses may depend on the jury's acceptance that an event took place exactly as you assert. So a videotaped deposition in which you require a witness to demonstrate or re-enact their conduct can be compelling visual proof. Don't overlook this powerful tool in your arsenal. In this episode, we provide you with our insights and strategies for seeking - or opposing - physical demonstrations in depositions. We also run through a litany of things to think about, and provide leading case citations to jumpstart your research.

Errata sheets - the blank pages that come with a draft transcript for your deponents to use in correcting or changing testimony - serve an important function. But there are five strict requirements for using them, and if you fail to satisfy all five elements, the entire errata sheet may be deemed a nullity. We tell you how to do it right, and what to look for if you want to challenge an opposing witness' changes.

SHOW NOTES:

*Maeda v. Kennedy Endeavors, Inc., 2021 WL 4134811 (Sept. 10, 2021) (errata sheet struck on technical grounds)

You finished your examination of a witness whose deposition you noticed, and the opposing lawyer - who did not cross-notice the deposition - has launched into a lengthy cross that goes far beyond anything you covered. And there's no end in sight. How much cross beyond the scope of your examination is "too much?" When is it okay to stop the deposition, and seek a protective order? We provide guidance for dealing with this common situation.

You and your team take laptops to every deposition. But you never take a printer. Why? Portable printers are lightweight, modestly priced, and worth their weight in gold in pretrial depositions. Deponents often refer to documents, places or things that you can easily find online and then print as exhibits on the spot. You can also instantly generate new discovery, based on information gleaned during the deposition, and immediately hand it to opposing counsel. Or even print documents you left behind at the office. Give a listen, as we explain how we use them, and the tremendous benefits we get from having a lightweight printer in our briefbags.

Are you independently audiotaping all your depositions? (We know you're not.) But why aren't you? Listen as Jim Garrity explains why you should routinely audiotape depositions, apart from stenographic or other means, and provides case authority and specific federal rule citations. Garrity argues that having an independent audiotape of deposition testimony is an incredibly powerful tool, widely overlooked by almost all litigators. A must-listen.

The documents reviewed by deponents in order to refresh their recollections, before their upcoming testimony, can be of critical value. What did they look at? Is it something you even knew existed? You may need to get your hands on them. But there's a right way, and a wrong way, to lay the foundation in order to compel their production. In this podcast, we explain how to do it, using Federal Rule of Evidence 612.

SHOW NOTES (Added after original episode publication date)

J & R Passmore, LLC, et al. v. Rice Drilling D, LLC, 2021 WL 4810150 (S.D. Ohio Oct. 15, 2021) (court deemed attorney-client privilege waived as to meeting minutes and emails used by corporate representative to refresh her recollection for the purpose of testifying in deposition)

"Legal contention" questions have been widely ruled objectionable in depositions. But what are they? What should you be listening for in order to spot them? Why is it okay to ask them in interrogatories, but not in depositions? In this podcast, we explain what a legal contention question is, why it's objectionable in deposition, and how to recognize one. (They're very commonly asked, but many lawyers let them slip by without objection.) It's a topic that has proven elusive, and more than a little confusing, to both lawyers and judges. We clear it up.

What's the "right" style for deposing witnesses? Full-on confrontation, using your best evidence to attack the witness's views? Or something more subtle, to lay the groundwork for an ambush at trial?