Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
A Litigator's Perspective on Deposition Transcript Management
Depositions in civil litigation serve multiple purposes. Simply gathering information would certainly be one of them. Creating a cross-examination script for trial, or laying the foundation for traps to spring would be others. Also: extracting the admissions for a winning summary judgment motion, shredding the opposing expert to enhance the settlement value of the case for one's client and perhaps even forcing one's client to acknowledge the warts in one's own case. And if one thousand litigators were polled, one would probably hear as many different opinions on the various purposes of depositions and the relative importance of those purposes. But one thing that all litigators should agree on is that real-time transcription and deposition transcript management applications can be significant tools for accomplishing whatever goals one has in a given deposition. One such product (and perhaps the most widely used product) is LiveNote, which can be a useful tool during the deposition, immediately after the deposition, in motions practice and at trial.
During the Deposition. Notwithstanding the oceans of ink spilled in bar journals decrying the state of the profession and calling for a return to civility, any litigator who frequently takes depositions will, from time to time, encounter obstructionist opposing counsel who flout the rules and deliberately defend with repeated speaking objections and subtle (or blatant) witness coaching. A crafty (or well-trained) witness can exacerbate the situation by picking up on the objections and tailoring his or her answers to match. Junior attorneys are especially ripe targets for this kind of unprofessional behavior, which frequently includes statements such as:
'I object ' that question blatantly mischaracterizes the prior testimony. What the witness actually said was '.'
'You asked me that already, a bunch of times. You asked it two hours ago and you asked it 10 minutes ago. I'm done repeating myself.'
Unprofessional or not, the fact of the matter is that such behavior can frequently be effective at knocking off the rhythm of the questioning attorney. Asking the court reporter to stop and find questions and answers from 10 minutes ago, let alone two hours ago, disrupts testimony, kills momentum and spontaneity, and chews up what may be precious time. But if the questioning attorney has a real-time transcript available at his or her fingertips, which is perhaps the most fundamental thing that LiveNote offers, the questioning attorney can quickly obtain the upper hand in such situations by term-searching the transcript for the critical pieces of testimony. Information is power, and one might imagine responses such as:
'First, counsel, your speaking objections are improper. Second, you are wrong. What the witness said was '[Quote].' With that testimony in mind, Mr./Ms. Witness, can you please answer the current question, which is'.'
'Mr./Ms. Witness, please understand that you are here today to answer my questions. Unless your lawyer instructs you not to answer, you are required to provide truthful answers. That said, for your information what I asked you two hours ago was ['X'] and what I asked you 10 minutes ago was ['Y']. I'm now asking you a slightly different question, which is ['Z']. Can you please answer?'
The author's experience has been that it only takes two or three such exchanges for the defending attorney and/or the deponent to abandon that kind of gamesmanship. And controversial questions and answers that the deposing attorney anticipates referring back to later can be marked for quick reference with a simple tap of the space bar.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
Supreme Court Rules Rejection of Trademark License Does Not Rescind Rights of Licensee
Mission Product Holdings, Inc. v. Tempnology, LLC The question is whether a debtor's rejection of its agreement granting a license "terminates rights of the licensee that would survive the licensor's breach under applicable nonbankruptcy law."