The Discovery Update E-Letter Articles

11Nov2013

Gain an Instant Advantage with Realtime

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Once a quarter the Atkinson-Baker Newsletter, Discovery Update,TM features those topics that shape the law itself and its practice. We address a broad variety of topics such as: copyright laws, unpublished opinions, discovery rules, employment law, evidence, expert witnesses, deposition practices, handling of exhibits and many, many more.
01Nov2013

Taking a Telephonic Deposition: Breaking Down the Basics

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By Jana D. Lamanna
Deposing witnesses who are located outside your state or great distances away is an issue that attorneys often face. Clients are concerned about litigation costs and prefer not to incur travel expenses, and witnesses are not always willing or able to travel to be deposed.
01Oct2013

How Does A Lawyer Prepare To Take A Deposition?

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By Max Kennerly
One of my most popular posts among lawyers is “Be A Potted Plant: Sanctions For Deposition Coaching and Witness Conferences,” which talks about how to defend a deposition in federal court, or, rather, how a lawyer should not defend a deposition of their client by acting like a fool at the deposition and interposing speaking objections.
01Sep2013

Beware The Words That Might Be Stuffed In Your Deponent’s Mouth

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By Alex Craigie
Anyone who has taken or even attended a deposition is at least somewhat familiar with the litany of admonitions that are customary before the substantive examination begins. These include explaining to the deponent, and generally asking her to confirm her understanding, how a deposition works, i.e.,
01Sep2013

Know When to Pursue Witness Inconsistency and When to Let it Go

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By Dr. Ken Broda-Bahm
If you’ve spent any time in civil courtrooms, you’ve seen it before. The witness in the box fudges an answer and says something that differs a bit from their deposition, and the solemn ritual of impeachment begins. With great fanfare, the official copy of the deposition is unsealed.
01Sep2013

Proposed Federal Rules of Civil Procedure Amendments

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By Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, D.C.
Since their introduction 75 years ago, the Federal Rules of Civil Procedure have embodied a policy of “broad and liberal” discovery, and state court procedures generally have followed suit. In the last two decades, the universal adoption of electronic mail for business communications and the decreasing cost of electronic storage have dramatically increased the cost of litigation,
01Aug2013

Tune Your Witness’s Tone of Voice

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By Dr. Shelley Spiecker
A few days ago I was helping prepare a successful CEO for testimony in an upcoming arbitration. The case boiled down to a dispute between two shareholders with one advocating for dissolution of their agreement and the other seeking to keep the agreement in force. 
01Jun2013

Test the Credibility of Your Turncoat Witness

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By Ken Broda-Bahm, Ph.D.
Not all witnesses are saints. While this is especially well known in the realm of criminal prosecution, it applies in civil trials as well. A witness may carry some unsavory background, or the context may simply be such that their testimony – truthful or not –
01Jun2013

A Potted Plant? Eh, Not So Much.

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By Alex Craigie
Two blawg posts last week caught my eye. Both discussed preparing and defending witnesses at deposition. At the Lawyerist, Chris Bradley talked about his experiences defending a client in his first judgment-debtor examination. His title for the piece, which I mistakenly took to be ironic, was: How To Defend A Deposition: Just Show up.
13Mar2013

Steps of Transcript Production – Atkinson-Baker Court Reporters

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As a rough rule of thumb, it could be said that the work a court reporter does in public, at the deposition or hearing, is about one-half to one-third of the total time needed to prepare a transcript. There are five phases to getting a transcript produced. They are: Reporting Translation or Note Reading Scoping Proofreading &
01Mar2013

More Than Just a Great Court Reporter

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You have a tough job. You work long hours under a lot of stress. If you overlook one detail, forget to note one date, you are liable for sanctions and may even compromise your case. The largest firms have their own calendar specialists to oversee such matters, but, whether you work for one of the top 100 firms or are a sole practitioner,
01Jan2013

Preparing Your Deponent for Sound-Bite Questions

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Sound-bite questions are a hallmark of depositions taken of Persons Most Knowledgeable (PMK aka Persons Most Qualified or PMQ) within an organization on certain topics.  Here are some examples:
“Does your company, manufacturer XYZ, have ethical considerations in the design of its products?” “Does ABC Hospital care about the safety of its patients?” “Was it important to your company that African-American employees not be harassed because of their race?” Of course,
01Jan2013

Consider a Blind Expert Witness

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By Dr. Ken Broda-Bahm
Justice may be blind, but hired experts can see pretty darned well in our litigation system. No, a responsible expert won’t lie in order to support their client. But, yes, a knowledge of who the client is can’t help but have at least a subtle influence on the resulting testimony.
01Nov2012

An Interview with Ralph Losey

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By Rebecca James, DiscoveryResources.org
Ralph Losey, one of the leading experts on e-discovery, is a partner and e-discovery chair at Jackson Lewis. His practice has been limited to e-discovery since 2006. Losey is a writer and an educator; he publishes books, articles and the e-Discovery Team Training blog; he teaches at the University of Florida;
01Mar2012

Making the Record

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By Lynda Batchelor Barker, Registered Diplomate Reporter
The reporter’s transcript is an important document before, during, and after a trial. The transcript is used for trial preparation, briefs, impeachment purposes, and, of course, for appellate review. Property, freedom, and life all can depend on a clear and accurate record.
01Nov2011

Be a Potted Plant: Sanctions For Deposition Coaching and Witness Conferences

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By Max Kennerly, The Beasley Firm
During the Iran-Contra hearings, Brendan Sullivan, a senior partner at Williams & Connolly who represented Oliver North, famously responded to Senator Daniel Inouye’s criticism of Sullivan’s repeated objections during the Congressional hearings with, “Well, sir, I’m not a potted plant. I’m here as the lawyer.
01Oct2011

iPad App for Depositions

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By Michael Berman, Rifkin Livingston Levitan & Silver
Joshua Gilliland, author of the Bow Tie blog and Bow Tie Law blog, and president of Majority Opinion, LLC, was kind enough to provide me with a complimentary copy of his new iPad App, called The Deponent App. Deponent marries document assembly principles with a database of stock deposition questions that can be tailored by the user and assembled into an outline for questioning during the deposition.
01May2011

Using an iPad to Recreate a Scene in a Deposition

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By Jeff Richardson
When taking a deposition of an adverse witness, I sometimes want to pin down a witness on exactly where he was standing or where some other events took place.  This can be difficult with simple questions and answers because even if the witness gives one explanation for where things took place,
01May2011

Disclosure vs. Privacy – The Global Data Dichotomy

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By Kroll Ontrack
Rapid advancements in communication and transportation continue to globalize the marketplace like never before. While globalization has certainly brought economic growth and opportunity for some, it has also created conflict for others. No matter where business is conducted, litigation will inevitably follow, and as the economic borders continue to blur,
07Mar2011

Transcript Delivery & Quality Control

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It isn’’t that long ago that your only choice in receiving a transcript was to receive a certified copy from your court reporter. You would then have to take it apart, photocopy it, pull out the scissors, and physically cut and paste the relevant portions. Although the terms “copy,” “cut,” and “paste”
01Feb2011

Why Preparing Clients for Deposition is Like Making Pancakes

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By Brian Wilson, Nicodemo & Wilson, Canton, OH
What is the one HUGE secret for making fluffy pancakes that rise like they should, as opposed to those paper thin, dense duds devoid of any texture or sponginess? And, by the way, as a long time weekend pancake slinger, this secret applies to homemade recipes (my usual choice) all the way down to the instant “just add water”
11Jan2011

Video Delivery Options

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Currently about 8-10% of the depositions we report are also videotaped, up from less than 3% five years ago. Video is used most often when the witness will not be available to testify at trial or when it is considered important to see the nuances of how the witness answered, something which would not be apparent from the transcript.
01Jan2011

Setting Up Review Workflows for Multi-Language Documents

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By Ron Tienzo, Director of Catalyst Consulting
The world is getting smaller. For large corporations, it is virtually certain that their operations span multiple countries. But it is no longer just large corporations that operate globally. These days even small and mid-sized businesses are likely to have international components.
01Nov2010

Preparing for Your First Deposition

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By George T. Williams, Cutting Edge Training
“It” happened.  You have been named as Defendant in a civil rights lawsuit in either state or federal court resulting from a force response incident.  You were served with the lawsuit some time ago.  You have met with your civil attorney (who may or may not work for your jurisdiction’s Attorney’s Office). 
15Oct2010

What Sets Us Apart – Atkinson-Baker Court Reporters

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Clients frequently ask what the difference is between our firm and some of the other nationwide agencies.  To answer that, I would like to give you a little bit of our background. I began my association with the court reporting field 22 years ago, as an independent court reporter. As the demand for my services grew,
01Oct2010

Deposition Stipulations or Do You Know What You’re Giving Up?

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By William A. Daniels
Please note: this article refers to California law. We all know about admonitions and we all use them more often than not to start a deposition. Sometimes, dispensing with admonitions with a well-coached witness helps unbalance the carefully prepared testifier, which means there’s a heightened chance of obtaining testimony that more closely resembles the truth.
01Oct2010

Calif. Gov. Arnold Schwarzenegger Not Getting all the Facts

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Excerpt – NCRA’s website
Gov. Arnold Schwarzenegger Not Getting all the Facts When It Comes to Replacing Stenographic Court Reporters With Digital Audio to Save the State Money. VIENNA, Va., Sept. 2, — In a press conference yesterday, California Gov. Arnold Schwarzenegger pointed to a number of missed opportunities that could have saved the troubled state $2.8 billion annually.
01Sep2010

Safeguarding Against Deposition Omissions

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By Brad Bradshaw, Bradshaw Litigation Consulting
If a witness has been adequately prepared for his deposition he knows that he is not going to be able tell his side of the story. Instead, it is a lot like playing a game of Twenty-Questions. One person asks questions and the other person answers questions.
01Jul2010

Thinking Outside the Box: Litigation Management Program Initiatives Can Substantially Lower Costs

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There is money to be saved by managing the litigation puzzle. Managing litigation is an easy way to save extra expense costs on claims files. A strong litigation management program designed to help foster improved communication and streamline defense of insureds benefits all parties involved. As I wrote about the cost savings benefits of out-of-the-box claims handling,
01Jun2010

Why Do You Need an Investigator?

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By Gary Fradis, Stein Investigations
When an attorney is presented with a new case, one of the first decisions he has to make is whether to litigate the matter or dispose of it by settlement. Sometimes, the lack of available information can make this a difficult decision. Many a case has been won based largely on the evidence procured through the use of an investigator.
01May2010

Detecting Witness Deception

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By Brad Bradshaw, Ph.D., Bradshaw Litigation Consulting
Lie detection, although far from being an exact science, has come a long way over the past several years. The problem is that many of the ways liars reveal themselves is not easily identifiable in a court setting. For example, polygraphs (i.e.,
01May2010

The Choreography of Trial Preparation

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By Barbara J. Ebenstein, Esq
Choreography is the art of making dances. The choreographer arranges movement, lights, and sound in a deliberate manner to convey a concept, set a mood, or tell a story. Trial preparation is like a choreography in that it is a deliberate arrangement of elements to convey a concept and tell a story from a particular point of view.
01Apr2010

The Reason Storytelling Works

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By Brad Bradshaw, Ph.D., Bradshaw Litigation Consulting
“Storytelling” is an unfortunate name for an extremely important concept. When used in a non-legal context “storytelling” has a negative connotation – denoting myth or even deception. However, in the legal arena the term “storytelling”’ refers to both the emotional and descriptive elements of the case that provides context and meaning to the facts.
01Apr2010

Appropriate Objections in a Deposition

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By Gordon Levinson, Ph.D., Levinson Law Group
Have you ever taken a deposition and had your opponent continually assert inappropriate objections? One after the other: “Irrelevant” “hearsay” “assumes facts not in evidence,” “calls for an opinion.” Obnoxious, isn’t it? Or worse yet, an attorney makes speaking objections blatantly designed to coach the witness,
01Mar2010

Dealing with Witness Anxiety

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By Brad Bradshaw, Bradshaw Litigation Consulting, Nashville, Tennessee
For most people, testifying under oath is an anxiety provoking experience. However, there is nothing wrong with a witness being a little nervous. From an evolutionary perspective, anxiety is an innate function that plays a vital role in survival. That is,
01Feb2010

Preparing Your Client for Deposition

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By David Newdorf, Newdorf Legal, San Francisco, California
Defending your client’s deposition can be a nerve-wracking, sweaty armpit experience.  At the end of the day, a weak performance or just one poor answer can sink a case.  But even with stakes this high, most lawyers do not spend enough time preparing the client to testify. 
01Feb2010

A Low Tech Advantage in a High Tech World

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By Barbara Lynch, Staff Writer
Today’s technology certainly is cutting edge and it’s advancing at a very quick pace. We are continually introduced to new techno-gadgets and electronic ways of communication which, only naturally, is overshadowing the more simple “technology” from yesteryear that still exists and is still quite useful.
01Jan2010

The Heroes of Last-Minute Depositions

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By Barbara Lynch, Staff Writer
My first approach to writing this article was to open with a scenario to which litigation professionals could relate with regard to scheduling last-minute depositions: the stress it can cause with the high chance of something not going right. But I didn’t want to insult anyone’s intelligence by pointing out something that we are all too familiar with:  Litigation professionals know first hand how deposition planning can be unpredictable due to multiple parties’ calendars needing to be aligned,
01Jan2010

When and How to Object During a Deposition

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By Paul Mark Sandler and John J. Lovejoy
(Please note: this article focuses on Maryland law and the information shouldn’t be assumed for other states.) In civil litigation, objection-free depositions are unheard of. Attorneys pepper the transcripts with interruptions. In truth, though, they often make unnecessary objections or fail to make them properly.
01Nov2009

An Online Comfort Zone for Firms

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By Barbara Lynch, Staff Writer
“Are you Tweeting?” That seems to be a popular question being asked in social circles. When I say “no” to that question and then top it off by saying that it’s still challenging for me to walk and “text” at the same time or that I don’t have a Facebook® page,
01Oct2009

Out-of-Town Depositions Made Easy

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By Barbara Lynch, Staff Writer
 A Reporter for Depositions in Every Nook and Cranny Location. Location. Location.  We’re used to hearing this when people talk about what makes a restaurant successful. When it comes to depositions, it’s just as imperative. One of the questions clients frequently ask is whether or not we can get them a reporter in a particular town – even if it’s way off the beaten path. 
01Oct2009

The Holding Pattern

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By Joshua Gilliland, Esq.
The past three years have seen an increase of cases highlighting litigation holds and the duty to preserve electronically stored information.  There is no shortage of cases that hold many “lessons learned” for attorneys and their clients. The Nightmare Litigation Hold Letter The Napster litigation gave us more than copyright law on music downloads;
01Sep2009

Videoconferencing: Making a Strong Comeback in a Weak Economy

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By Barbara Lynch
During the discovery process, when people can’t be in the same location at the same time, videoconferencing is a very convenient way of communicating while still being able to observe facial expressions, mannerisms, and body language. According to an article last month in Portland’s Oregonian newspaper,
01Aug2009

Electronic Transcript Management Made Easy

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By Barbara Lynch, Staff Writer
Today’s technology has caused the amount of paper being used in the legal industry to be cut back over the years, but the quantity of paperwork that still is flowing in and out of law offices can be overwhelming for any legal professional working in litigation.
01May2009

Deposition Preparation with Technology

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I have taken and defended a good number of depositions.  Preparing for deposition requires thoroughness, thoughtfulness, and not being tied to your question outline like a student actor reading a script.  Whether you are “old school” or “new school,” there are many ways to enhance your deposition practice with litigation support software.
01Apr2009

Preparing a Witness for a Successful Deposition

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By Matt Keenan, Shook, Hardy & Bacon, Kansas City, MO
In my 20-some years of working with company witnesses as part of the discovery process, I’ve learned that the prospects of a deposition can stress even the most accomplished corporate executive. One way of lowering their level of anxiety is to give them mileposts to follow as they prepare.