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Practice Tip: The Do's and Don'ts of Depositions
In the past few years, I have had the pleasure of flying around the country to participate in pharmaceutical mass tort depositions. I have also been reading lots of those transcripts and am appalled at the questioning, often by highly paid associates, that permeates today's litigation. There appears to be an almost universal disregard to posing a proper question. Instead, most of the young interrogators I have come across try to construct a question out of a declaratory sentence with either a rising inflection or a tag-along word at the end. “You're a dermatologist, right?” While such a question is not objectionable, it is one that is guaranteed to sow future improper ones because objectionable questions are habit-forming.
Although most material obtained in depositions is never utilized, nevertheless if a motion for summary judgment is made, some issues need admissible evidence. How can a lawyer overcome the habit of asking poorly propounded questions? In Spanish, a question is preceded by an inverted question mark. This gives the reader
advance notice of the type of sentence that follows. Lawyers should keep that custom in mind to remind themselves that questions should be just that, not declarations. A question is a request for information (“Are you a dermatologist?”). It is not a declarative statement, i.e., one that states a proposition. Perhaps a look at some of the questions I have gleaned from actual transcripts will serve as a lesson in how to avoid these problems.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
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.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.