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June 20, 2017

 

 Taking and Defending Depositions, Second Edition—The Difference Between Pushing Pieces Around and Playing Chess

By Barry Goldman

Reading Stuart Israel's new book, Taking and Defending Depositions, Second Edition (ALI CLE, 2017) is like watching an autopsy. You know how a skilled pathologist slices up a body and carefully removes each organ and weighs it and examines it and puts it in a meticulously labeled jar? Neither do I, but go with me on this. Imagine you're watching this old doc. He’s done so many autopsies he can do them blindfolded. He proceeds, as Goethe would say, “Ohne hast, ohne rast,” without haste, without rest. He examines each bloody bit as thoroughly as if he had nothing else to do. He describes the condition of each tissue with encyclopedic knowledge and total recall of the relevant literature, and he moves to the next piece of bloody business with a practiced grace. He misses nothing. And while works, he talks. He quotes Oscar Wilde, G. Gordon Liddy, Charles Dickens, and Mike Tyson. And he makes jokes.

My friend, colleague, and sometimes co-author Stuart is like that. He is meticulous, thorough, and subtle. He is scrupulously careful. And he is wise, charming, and funny. The grisly business he is about is taking and defending depositions, and it's hard to imagine how anyone could do a better job.

Every section is carefully cross-referenced to the relevant provisions in the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the American Bar Association Model Rules of Professional Conduct and the relevant caselaw. But you would expect that. What you might not expect is the hard-won practical advice about the application of those provisions in the real world. And what you almost certainly do not expect is the wit with which that wisdom is conveyed.

Here is Stuart on the decision to take a discovery dispute to the judge:

            [E]ven if you're in the right, bringing a motion to compel or for a protective order may   produce judicial antipathy or worse.… [ W]hen you go to court on a discovery motion,   you risk the Law of Unintended Consequences, which may result in judicial micromanagement, burdensome discovery limitations, undesirable discovery extension and expansion, merits prejudgment (“premature adjudication”), and sanctions for having the temerity to file a motion that is denied.

You are not going to find “premature adjudication” in any other book on this subject.

Here he is on copies of exhibits:

            Some lawyers provide a complete set of exhibits to the reporter at the beginning of a deposition, sometimes in a binder. This is very courteous and efficient. It obviates the need for breaking the flow to get papers marked and distributed during the deposition. Courteous and efficient, yes, but also disadvantageous to the questioner, who is supplying the other side with a roadmap to his thought processes, and with a comprehensive set of materials for the opposition's review at lunch and during evenings between deposition days.

As I said, worldly, practical, and subtle.

Here he is on “transcript awareness:”

            [I]f your client is asked to select from a number of documents those she read before a crucial date and she answers “This one, these three, and the one by your left hand,” you have a choice. You can leave the record as it is – obscure and unusable at trial. Or you can clarify. If obscurity favors you, leave things alone. On the other hand, if the testimony helps, clarify the record.

This is not just pushing the pieces around. This is chess. And there is counsel at this level on every page of this profoundly valuable book.

 Get your copy of Taking and Defending Depositions, Second Edition (ALI CLE, 2017) by clicking here

Barry Goldman, MA, JD, is an arbitrator, mediator, and author of The Science of Settlement

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