- 11Nov2013
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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 We address a broad variety of topics such as: copyright laws, unpublished opinions, discovery rules, employment law, evidence, expert witnesses, deposition practices, handling of exhibits and many, many more.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
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Taking a Telephonic Deposition: Breaking Down the Basics
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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
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How Does A Lawyer Prepare To Take A Deposition?
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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
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Beware The Words That Might Be Stuffed In Your Deponent’s Mouth
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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
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Know When to Pursue Witness Inconsistency and When to Let it Go
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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
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Proposed Federal Rules of Civil Procedure Amendments
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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
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Tune Your Witness’s Tone of Voice
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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
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Test the Credibility of Your Turncoat Witness
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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
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A Potted Plant? Eh, Not So Much.
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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
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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
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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
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Switch Between Analysis and Empathy (Because You Won’t Get Both at the Same Time)
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Take a look at the picture. See the duck (looking to the left)? Now, see the rabbit (looking to the right)? Now try to see them both at the same time. If you’re like most people, you can’t. Instead of seeing an image that is simultaneously a duck and a rabbit,
- 01Jan2013
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Preparing Your Deponent for Sound-Bite Questions
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“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
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Consider a Blind Expert Witness
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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
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An Interview with Ralph Losey
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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
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Making the Record
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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
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Be a Potted Plant: Sanctions For Deposition Coaching and Witness Conferences
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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
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iPad App for Depositions
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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
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Using an iPad to Recreate a Scene in a Deposition
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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
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Disclosure vs. Privacy – The Global Data Dichotomy
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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
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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
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Why Preparing Clients for Deposition is Like Making Pancakes
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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
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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
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Setting Up Review Workflows for Multi-Language Documents
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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
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Preparing for Your First Deposition
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“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
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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
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Deposition Stipulations or Do You Know What You’re Giving Up?
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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
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Judges and Litigators Explain Why They Prefer Realtime Reporters to Recording Devices
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Compiled by Jerry Kelley, RPR, CRR, an official court reporter in McKinney, Texas. I prefer using realtime court reporting (with encryption to ensure privacy), with the spoken word appearing in realtime, in English, on my laptop computer screen for immediate use. The judge, counsel, co-counsel, house counsel,
- 01Oct2010
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Calif. Gov. Arnold Schwarzenegger Not Getting all the Facts
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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
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Safeguarding Against Deposition Omissions
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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
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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
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Why Do You Need an Investigator?
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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
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Location of Depositions In Arbitrations: A Potential Conflict, Easily Avoided
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Binding arbitration is intended to be a more efficient means than litigation of resolving commercial disputes. Often, arbitration can save litigants time and money. There are areas, however, where arbitration can be more costly and less efficient than judicial litigation. One of those areas is the location of depositions.
- 01May2010
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Detecting Witness Deception
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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
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The Choreography of Trial Preparation
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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
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The Reason Storytelling Works
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“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
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Appropriate Objections in a Deposition
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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
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Dealing with Witness Anxiety
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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,
- 01Mar2010
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Working With The Players: Witnesses, Judges, Clerks, Bailiffs & Expert Witnesses
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Successful paralegals are challenged every day by the litigation process. A big part of that challenge is understanding the differences in the responsibilities of the key players as the litigation progresses. This includes not only the client, but fact witnesses, expert witnesses,
- 01Feb2010
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Preparing Your Client for Deposition
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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
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A Low Tech Advantage in a High Tech World
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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
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The Heroes of Last-Minute Depositions
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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
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When and How to Object During a Deposition
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(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
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An Online Comfort Zone for Firms
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“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
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Out-of-Town Depositions Made Easy
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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
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The Holding Pattern
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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
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Videoconferencing: Making a Strong Comeback in a Weak Economy
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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
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Electronic Transcript Management Made Easy
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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
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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
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Preparing a Witness for a Successful Deposition
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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.