The Discovery Update – October 2014

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October 2014

From the President

Because we know that the success of your depositions is of the utmost importance to you and your clients, we continue to focus on providing you with useful tips, tools, and information in our e-newsletters.

To this effect, this month we included information about the use of depositions in mediation and also share key points for witnesses testifying at deposition or trial.

We’re here to provide you with court reporters, videographers, interpreters, and conference rooms nationwide. Please call us to schedule any time as we are here to help!

Best regards,
Sheila Atkinson-Baker

Effective Use of Depositions in Mediation

By Henry Cox

To be persuasive, we must be believable. To be believable, we must be credible. To be credible, we must be truthful. (Edward R. Murrow)

While most cases are settled in the mediation process, a reason cases do not settle in mediation is because the position taken by a party is not well founded in persuasive, believable, credible, or truthful information. While bluffing, raised emotions, fear tactics, and isolation from the other party can be used in facilitated negotiation, such gamesmanship is not as effective as positions based in solid facts.

Depositions taken prior to mediation have a tremendous opportunity to assist in developing a more persuasive position in mediation.

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Boilerplate Objections and “Good Faith” Requirements Are Ruining Civil DiscoverY

By Max Kennerly

The First Judicial District of Pennsylvania, better known as Philadelphia state court, is one of the most efficient high-volume civil justice court systems in the country. Part of this success owes to the “Day Forward” program implemented years ago, which years ago began pooling together all the cases of a given year together for management by a single judge, particularly when it comes to discovery disputes. (Years later, in 2009, the American College of Trial Lawyers began recommending “A single judicial officer should be assigned to each case at the beginning of a lawsuit and should stay with the case through its termination.”)

To avoid an endless hell of discovery-related oral arguments, the “team leader” judges schedule one day each week to batch together all of their discovery motions for that week. By the time 9:00 a.m. rolls around, the bulk of motions end up either abandoned, withdrawn, or entered by agreement, after which the contested motions are heard one after the other. Litigators love to complain about discovery court, because sitting through even 15 minutes of someone else’s oral argument when you’re ready for yours can feel like spending a day in a traffic jam, but I tend to sit back and listen, to see what works and doesn’t work for the lawyers, and to see the judge’s general approach to the discrete issues presented.

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