From the President’s Desk…
My term as President of the MCBA has come to an end and several people have asked me recently if I am glad it is over. Glad? No. I am happy that my e-mail inbox is not quite as full and that I have more time to spend with my family, but serving as your president was a much more enjoyable and fulfilling experience then I had anticipated and I am so glad that I had the opportunity.
Upcoming Events
Next month we will install the new Trustees and Officers and I hope that you will all join us at Trenton Country Club on February 20, 2025 as I pass the baton (gavel?) to our new President, Brian Shea. That evening is Brian’s chance to share his thoughts and plans for the upcoming year, so
JenniferZoschak,Esq.
while I will have a few words to share that night, I’ll take this opportunity to thank the many people who helped make my year as president so rewarding….and there are so many.
Our Executive Director, Anita Mangat, and our Bar staff –Michele Krasny and Teri Eide – have been invaluable partners in every event we sponsored this year. Their hard work, creativity and dedication to our members were incredible contributions and I
2024 Volume 43,
Officers
Jennifer Zoschak
609-844-0488 President
Brian W. Shea
609-896-9060 President-elect
Ross J. Switkes
856-662-0700 Vice President
Jennifer Downing-Mathis
609-610-6003 Treasurer
Joseph Paravecchia
908-788-1129 Secretary
Trustees
2024
Kiomeiry Csepes
Jennifer Weisberg Millner
Robert F. Morris
609-241-7111
609-896-9060
609-896-9060
Jenna Casper-Bloom 908-200-3535
Jessica A. Wilson
2025
Frank P. Spada, Jr.
C. Robert Luthman
Bryan M. Roberts
Nikki J. Davis
Marc A. Brotman
2026
Heather Hadley
Chris L. Jackson
Evan J. Lide
Michael Jordan
Neethi Vasudevan
Margaret Chipowsky
Immediate Past President
Michael Paglione
NJSBA Representative
Anita Mangat
Executive Director | MCBA Office
856-234-6800
215-877-2653
609-594-4000
609-896-9060
609-587-9100
609-275-0400
609-433-0955
609-896-2000
609-896-9060
609-895-7355
609-730-3850
609-815-7584
609-275-0400
609-585-6200
The MERCER COUNTY LAWYER is published four times per year; Winter, Spring, Fall and Fall. Advertisements appearing in the MERCER COUNTY LAWYER are the viewpoints of the contributors and are not necessarily endorsed by the Mercer County Bar Association or its members. The MCBA does not vouch for the accuracy of any legal analysis, citations, or opinions expressed in any articles contained herein. Individuals who are interested in joining the Association, placing advertising, or contributing articles should contact the Bar Association office at 609-585-6200, or e-mail info@mercerbar.com.
am grateful for all they did to make this year successful. My highest goal this year was to get the Bar finances under control and our staff was a tremendous help in making that happen.
I was also blessed to have an amazing Executive Board of Officers to lean on, and they really stepped up. Brian, Ross, Jenn and Joe went above and beyond to make sure that things got done this year, membership remained strong and new programs were implemented. These are your up-coming Presidents and I am confident that each of them will serve you well.
The Mercer Judiciary continued the support and assistance they have shown all of our past presidents, and their encouragement, assistance and participation means so much to me. I know how busy they are and truly appreciate all they did this year and continue to do to make the Bar successful.
This year gave me the chance to get to know our Committee Chairs, Trustees and members better and so many of them went that extra mile to make things happen or to lend a hand when needed. When I was installed as President, I told you that I wanted to create a community where everyone was welcome and could find a place. I feel like that happened.
We had some new and exciting events and programming this year – the Axe Throwing
was so much fun and I hope it continues as an annual event – and all of that was because of members getting creative, dedicating their time and energy, and following through. I got the opportunity to attend the Naturalization Ceremony, which was a truly moving occasion, as well as continue to work with members of NJSBA to make sure Mercer County was counted and recognized. I am so pleased that our Real Estate Section has made a come-back and I know that it will continue the great strides it made this year.
My column space is limited so I can’t thank each and every person who helped so much this year by name, but please know that it was recognized and appreciated.
I will dedicate some of my space to two very special people without whose support I could not have done this: my partner in law: Rebecca Colón, who never complained about the hours I spent on the Bar, picked up the slack and kept our office running smoothly; and my partner in life, Rob Beckelman, who understands why I do what I do and shows his love and support every day.
Thank you, all. It has been my honor to have served as President of the MCBA.
* NEW to Mercer County Bar Association! *
Elisa Advani, Esq., CentralJerseyLegalServices
Kimbery Burke, Esq., CentralJerseyLegalServices
Jessica Cranford, Esq., MercerCountyProsecutor’sOffice
Hillary Freeman, Esq., FreemanLawOffices,LLC
Alexander Gilbert, Esq., MercerCountyProsecutor’sOffice
James Hynd, Esq., MercerCountyProsecutor’sOffice
Kyle Inverso, Esq., MercerCountyProsecutor’sOffice
Dana Keane, Esq., OfficeofthePublicDefender
Anthony Medori, Esq., Stark&Stark
Joshua Rosen, Esq., MercerCountyProsecutor’sOffice
Angelina L. Sferra, SzafermanLakind
Corsica D. Smith, SupremeCourtofNewJersey
Michael F. Spielberger, Jr., Esq., Spielberger&Buzzelli,LLC
Craig Voorhees, Esq., SzafermanLakind
Patrick Walsh, Esq., MercerCountyProsecutor’sOffice
Farrah Deeba Zaidi, LawStudent
Mariam Zein, Esq., SzafermanLakind
*And welcome back to the following member*
Ezra D. Rosenberg, ACLUofNewJersey
Mr. Rosenberg was past-President of the Mercer County Bar Association for the 1994-1995 term. For the past 10 years, he has been working in Washington DC as Director of the Voting Rights Project for the Lawyers’ Committee for Civil Rights Under Law. He recently returned to New Jersey to assume the position of Director of Appellate Advocacy for the ACLU of New Jersey.
Thank you to our 2024 Golf Outing Sponsors:
Masters Sponsor FaegreDrinker
Putting Contest redeye
Closest to Pin CitizensBank
Longest Drive
Cocktail Reception
SpectatorInvestigations
RobsonForensic
Hole Sponsors: MillnerKitchens
PrincetonBrainSpine&SportsMedicine
RenziLegalResources
ShermanSilverstein
Stark&Stark
SzafermanLakind
WierAttorneys
On Thursday, October 10, 2024, the MCBA Golf Tournament took place at Hopewell Valley Golf & Country Club. Thank you to all who came out to make this a successful event.
The Mercer County Bar Association was honored to host the November General Membership meeting and Casino Night on Thursday, November 14, 2024, at Stone Terrace.
Congratulations to Michael J. Nizolek Award winner Michael G. Donahue, III, Esq. and Community Partner Award winner Bayard Rustin Center for Social Justice.
We thank our event sponsors, Oswald & Zoschak, Faegre Drinker Biddle & Reath LLC, Dennigan Cahill Smith, LLC, Princeton Brain Spine & Sports Medicine, Renzi Legal Resources, LawFirm IT, and M&T Bank.
s Holiday Party & Toy/Winter Wear Drive was held on Thursday, December 12, 2024, at Trenton Country Club. We were honored to recognize the retirement of Honorable F. Patrick McManimon, J.S.C. and
The Mercer County Bar Foundation presented the 2024 Samantha Josephson Scholarship Award to Melissa Baroni and to runner-up Marco Granston.
We thank our event sponsors, Oswald & Zoschak, Faegre Drinker Biddle & Reath LLC, Dennigan Cahill Smith, LLC, Princeton Brain Spine & Sports Medicine, Stark & Stark, Szaferman Lakind, and Renzi Legal Resources.
Equality Forum
Names the Founder of Bayard Rustin Center for Social Justice an Icon
There is a quote that sums up Robt Martin Seda-Schreiber’s guiding principle as an advocate for the LGBTQIA+ community and other marginalized groups.
“We will never speak for anyone, but with everyone.”
Seda-Schreiber, Chief Activist at the Bayard Rustin Center for Social Justice in Princeton, has been named a LGBTQIA+ History Month icon by the Equality Forum. October has been celebrated as LGBT History Month since 1994. It acknowledges the achievements of 31 lesbian, gay, bisexual or transgender icons – one for each day of the month. Seda-Schreiber was honored on Oct. 22.
Malcolm Lazin, the executive director of the Equality Forum, praised SedaSchreiber.
“As a dedicated activist, organizer and educator, Robt Martin’s selection as an ‘out’ LGBTQIA+ History Month icon makes a significant civil rights statement of the important national and international contributions of the queer community,” Lazin said.
Seda-Schreiber, who founded the Bayard Rustin Center for Social Justice in 2018, said he was “extraordinarily honored and absolutely thrilled” to receive recognition as an icon.
“I think 55 years old might be a tad young to be named an icon, but this designation will now inspire me to be that much more dedicated to the intersectional beloved community that I am humbled to serve,” he said.
“Personally, as someone who proudly embraced my bisexuality later in life, I hope very much that this serves as a beacon for other folks who are on their own journeys of self-discovery as well,” he said.
Seda-Schreiber said that his advocacy work has never been done in a vacuum. Being honored as an icon allows the spotlight to shine even more brightly on the team at the Bayard Rustin Center for Social Justice, he said.
The Center is named for gay civil rights leader Bayard Justin, who was an adviser to the Rev. Martin Luther King Jr. It offers support programs and dedicat-
ed safe space for members of the LGBTQIA+ community. It is staffed by volunteers.
Seda-Schreiber was born in Brooklyn, N.Y., and raised in East Windsor Township. He taught art in the East Windsor Regional School District for 25 years.
The Bayard Rustin Center for Social Justice grew out of Seda-Schreiber’s efforts to support the gay and lesbian community, starting with the creation of the Gay-Straight Alliance at the Melvin H. Kreps Middle School in the East Windsor Regional School District.
There were gay-straight alliances in other schools, but the Gay-Straight Alliance at the Melvin H. Kreps Middle School was the first one in a middle school, Seda-Schreiber said.
“When I forged the first Gay-Straight Alliance in a middle school in New Jersey, it did not happen because of me nor did it originate with me,” he said.
“It was a student who came to my desk, sharing confidentially that they did not feel safe in our hallways,” SedaSchreiber recalled. “They did not feel comfortable in our classrooms or welcome in the greater community.”
Seda-Schreiber approached school district officials, who supported his efforts to create the Gay-Straight Alliance at
the middle school. Those efforts were supported by the administration, teachers and the New Jersey Education Association, he said.
The importance of the Gay-Straight Alliance cannot be emphasized enough, he said. It has helped many students who have grappled with their identities and made them feel supported.
Fast-forward 25 years, and SedaSchreiber created the Bayard Rustin Center for Social Justice. He described the center, located at 12 Stockton St. in Princeton, as a community activist hub, educational bridge and safe space for LGBTQIA youth, intersectional families and all marginalized individuals and groups.
Programming at the center includes the Queer Youth Brigade, Trans Enby Justice Collective, Defenders of the Right to Read, the annual PRIDE Parade & After-Party, and queer community gatherings.
“Most importantly, it is a dedicated safe space that is open every day. It is hosted by volunteers who are trained to welcome anyone and everyone who wants or needs our love and support,” Seda-Schreiber said.
The center attracts people from Princeton, Lawrence Township, East Windsor
Township, Hightstown Borough, Montgomery Township and the Hopewell Valley communities.
“The irony in my work as the chief activist of the Bayard Rustin Center for Social Justice is to put myself out of a job by creating a community, a society and a world where safe spaces no longer need to exist,” he said.
Seda-Schreiber said he is looking forward to a time when people – no matter how they identify or who they love – can walk down the street without fear or walk down a school hallway without anxiety and enter any room without hesitation or concern.
SKILLS FOR EFFECTIVELY TAKING AND DEFENDING DEPOSITIONS
Submitted by Nicholas Kant, an attorney in Mercer County*
This article will cover generally cover the taking and defending of Depositions in New Jersey. As is frequently said by an attorney to a witness being prepped for a deposition, a deposition is giving testimony that can have the same weight and effect as if you were testifying in court, but in a less formal setting. Thus, as expected, the rules and the skills that apply overlap with those applicable to trials, but also vary in significant ways, as discussed below.
Legal Authorities
The general grant of authority to take a deposition for a state court case in New Jersey is in Rule 4:10-1, which states “Except as otherwise provided by R. 5:5-1: . . . parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions . . .”
The scope of the deposition is spelled out in Rule 4:10-2, which states “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence; nor is it ground for objection that the . . . party has knowledge of the matters as to which discovery is sought.”
Depositions can be taken before the action commences under R. 4:11-1, and under R. 4:11-2 pending appeal. These require a motion to petition to court, and are likely rare.
More commonly, depositions are taken after commencement of the action but not prior to 35 days after service of the summons and complaint. R. 4:14-1. A Party wishing to take the deposition of any person shall give no less than 10 days’ notice in writing to every other party in the action. R. 4:14-2. It is also possible to take the deposition of a corporation under R. 4:14-2(c). The depo-
sition notice would list topics for the deposition and then the corporation should provide notice prior to the deposition of who will testify on behalf of the corporation. Under R. 4:14-2(d), the deposition notice can include a request for documents.
Under R. 4:14-3(a), examination and cross-examination of deponents may proceed as permitted in the trial of actions in open court, but the cross-examination need not be limited to the subject matter of the examination in chief.
Objections are different in depositions versus in trials. Namely, the scope of objections is greatly limited. Under R. 4:14-3(c), “No objection shall be made during the taking of a deposition except those addressed to the form of a question or to assert a privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. The right to object on other grounds is preserved and may be asserted at the time the deposition testimony is proffered at trial. An objection to the form of a question shall include a statement by the objector as to why the form is objectionable so as to allow the interrogator to amend the question. No objection shall be expressed in language that suggests an answer to the deponent. Subject to R. 4:14-4, an attorney shall not instruct a witness not to answer a question unless the basis of the objection is privilege, a right to confidentiality or a limitation pursuant to a previously entered court order. . . .”
Under R. 4:14-3(f), “Once the deponent has been sworn, there shall be no communication between the deponent and counsel during the course of the deposition while testimony is being taken except with regard to the assertion of a claim of privilege, a right to confidentiality or a limitation pursuant to a previously entered court order.” That means no talking to your client about the substance of the case once the deposition starts. Compare that with the federal system and other states, which may allow it.
In the federal system, refer to FRCP 30, which states at (c)(2): “Objections. An objection at the time of the examination whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”
Many individual statutes allow the state to take administrative or investigative “interviews” which can be without a court reporter or with one. These can therefore be like a deposition, but are essentially pre-litigation. Also, different rules apply. See, e.g., - In re Groban, 352 U.S. 330 (1957), In re Application of Tufi; 182 N.J. Super. 631 (App. Div. 1982); Matter of Comprehensive Investigation of School Dist. of Newark, 276 N.J. Super. 354 (App. Div. 1994). These cases give the investigating agency some additional power to control the proceeding. These interviews are usually demanded via subpoena, but varies by agency.
Also note that depositions are generally not allowed in the Office of Administrative Law or Special Civil Part absent a motion. But research a de bene esse deposition, which is like a deposition but is actually trial testimony for an unavailable witness.
Initial Considerations
Before you prepare your deposition notice, there are many things you should consider first, such as:
• Do I need to depose a person? If so, why?
• What do I need from the person?
• Cost – ask your client. Can be over a thousand dollars for a full day’s deposition.
• In order to determine the answers to these questions one must:
Research relevant law.
Identify all available facts.
Identify all relevant facts.
Know the other side’s theory – Look at the Complaint and Answer.
Once this is done, use depositions to:
• Obtain new information.
• Confirm known information.
• Preclude avenues of escape for the opposing side.
• Obtain admissions.
• Test legal and factual theories.
Uses of Deposition Testimony
There are a lot of ways to use a deposition, and it depends on how you want to use it
and who the witness is. You have to keep in mind that even though it is sworn testimony, it is still likely to be hearsay when you want to use it. Some potential uses and rules are:
1. Refresh Recollection- N.J.R.E. 612
2. Impeachment by Prior Inconsistent Statement– N.J.R.E. 803
3. As Prior Testimony- N.J.R.E. 804(b)(1)
4. As a Source of Admissions- N.J.R.E. 803(a)&(b)
5. As an Offer of Proof- Rule 1:7-3
6. Perpetuated Testimony- Rule 4:11-3
When specifically might you use the testimony?
1. Summary judgment motion
2. Impeachment at trial or hearing.
3. “Deposition reads ” The testimony is still hearsay, but if you have an exception, most commonly if it is a party opponent, you may be able to simply read the testimony into the record.
4. “De Bene Esse” - again this is actually trial testimony for a witness who will be unavailable for trial, but it is taken like a deposition and then played later for the court. Research it, and you may need a motion in advance.
Scheduling a Deposition
Again, review Rule 4:14-2: Notice of Examination. You must give the deponent at least 10 days notice in writing and serve every other party. Notice must state time and place which must be “reasonably convenient” for all parties. Consider if you should simply issue the notice versus making a prior agreement with opposing counsel on when and where. Either can work, but if you just issue the notice, expect that opposing counsel or the witness will have a scheduling conflict of some sort and you will have to change negotiate the date or location.
Deposition Strategy
ORGANIZE!!!!
• Create a deposition outline which should cover the topics you want to question the witness about.
• Consider all documents you want to use as exhibits, including interrogatories and other forms of discovery.
• If you want to test legal theories, incorporate that testing in the areas of inquiry.
• What are the causes of action? What does the Model Jury Charge or controlling case law state?
How do we get the most out of the deposition? Information gathering through questioning is the primary goal of a deposition, so how do we organize our questioning to ensure we maximize our ability to gather all of the relevant information? Many use the “funnel” method, described below.
However, first, before the substance of the deposition, most attorneys ask a series of initial questions, also referred to as “committing the witness.” You want to secure a commitment from the witness that he understands the deposition process. You can probably get a list of the questions from another attorney, but it is usually something like:
• Ask if he has ever been deposed before.
• Explain the process.
• Ensure he understands his role in the deposition.
• Ensure he understands your role and that of opposing counsel.
• Tell the witness that answers must be verbal.
• Tell the witness you want to understand everything he has to say and that you want him to provide full and complete answers.
• Ask the witness to tell you if he doesn’t understand a question to let you know and you will try to frame the question in a way that is understandable.
• Instruct the witness that you don’t want him to speculate or guess.
• Ask the witness to let you know if any documents will help her to answer your questions.
• Inquire what documents, if any, the witness reviewed in preparation for the deposition (You are entitled to these documents even if already produced in discovery. PSE&G Shareholder Lit., 320 N.J. Super. 112 (Ch. Div. 1998))
• Ask for assurance that if at any time the witness realizes she gave an incorrect answer she will let you know.
• Inquire if the witness is on any medications that might impair his ability to recall past events.
• Inquire if there is ANY reason he would not be able to fully and accurately testify today.
• Explain that you will take a break from time to time during the deposition.
• Advise about the limitations on conferring with his counsel R. 4:14-2(f).
Turning back to the funnel method, the idea is that the entire deposition is one big funnel, starting with bigger open ended questions, like who, what, when and where, designed to elicit more information. Then you slowly work your way down to more specific questions, with the goal to get admissions from the witness such as “you agree that . . . .”
You might have funnels within funnels. For example, if there are multiple issues, occurrences, counts, businesses, etc., you might want to tackle each one of those as a separate funnel and then go back to the top of the funnel for the next one.
Exhaustion, Follow Up and Recapitulation
Keep in mind the concept of exhaustion, which most attorneys readily understand. The goal of exhaustion should be to get a clear idea of the breadth and depth of the witness’s knowledge, often this is accomplished by doubling back. Questions that can serve the exhaustion goal include:
• Is there anything else you can recall about…
• Have you told me everything about…
• Are there any other witnesses to the events you can recall?
• Always?
• Never?
Following up is simply asking questions that help to clarify, narrow and focus the interrogation:
Examples of questions that can serve this goal include:
• When you told me _____ what did you mean by that?
• Can you explain a bit further how X happened?
• Where were you positioned when….
• Did you see what X was doing when....
• What were you doing when….
• Was anything obstructing your view of …
• Did you hear anything said by…
Often gaps will be filled in the follow-up questioning, but not always. In the follow-up phase you should tie up what you have learned thus far by asking
questions where the witness gave an answer that was incomplete or where you believe he might have more information on the topic.
To do this ask questions such as:
• What about…?
• Was there something…?
• Have you …?
• Were there any…?
• Did you or anyone else…?
• When you spoke to X did she…?
Use recapitulation to consolidate and clarify answers that were rambling or interrupted - primarily for clarity in the event the deposition is used at a later time either at trial or for motion practice.
This can also be useful in creating a list of topics where none exists.
The lead in for questions used to recapitulate can be:
• As I understand it….
• Is it right that…?
• Just to be sure we’re clear about…
Admissions
When you ask a question and you want the witness to admit something, they might refuse to give it to you. Don’t let the witness wiggle out of the question. Force the witness to give you the answer you can use. For example, if the witness is qualifying the answer, like “maybe I did but…” or “yes but….”
Strategies you might use for such a situation:
• Keep asking the question over and over again.
• Follow the witness’s line of thought a bit and then circle back.
• But be careful, don’t follow the witness down a rabbit hole, stick with your plan (you can make a note of a new funnel to pursue later).
• Let the witness know that he or she is just prolonging this.
• Keep in mind depositions “continue on dates mutually agreeable to the parties until completed”, so the witness can’t just run out the clock.
This illustrates why you don’t want to script your questions too heavily. You need to (always) remember to listen to the answer, not just plow on with your next scripted question.
“I Don’t Know”
How to handle the “I don’t know response.” You can work through a series of questions that might jog the witness’ memory or, explore other avenues that might lead you to get the witness to recall, such as:
• Is there anything that might refresh your recollection?
• Did you ever know the answer?
• Is there someone you might have talked to about ….?
• Was a written record made of…?
• Where would that record be located?
But remember that if the witness is saying he/she does not remember repeatedly, especially for something he/she should know or remember, it is not necessarily a bad thing for you, because they may be throwing away their credibility.
How to Handle Breaks
After a break, remind the witness she is still under oath.
• Inquire if anything happened during the break that would prevent the witness from testifying fully and accurately.
• Inquire if the witness wants to change or add anything
• Inquire if the witness reviewed any documents during the break, if so what documents.
• Inquire if the witness spoke with anyone about her testimony. If so, with whom did she speak?
Handling a tough adversary or witness
NEVER allow opposing counsel to take over the questioning of the witness you are deposing under the guise of assisting you or for any other reason, even if you are having difficulty articulating the question/point you want to make, or if the witness is not properly responding.
ALWAYS keep CONTROL over your proceeding, your witness, etc., never give up
control.
DON’T allow speaking objections.
• For example: “I’m going to object. There’s no way he could know the answer, he said he wasn’t able to see the light from that angle, so . . . ”
• You can call counsel out for what he/she is doing, ask them to stop. Escalating responses would be to stop the deposition and file a motion or call the judge.
If the witness takes the Fifth Amendment, keep in mind that can create an adverse inference against them.
NEVER let the witness turn around the questioning onto you (such as responding to your question with a question directed to you, the attorney) or otherwise take control of YOUR deposition.
Potential responses in this situation include:
• “Please answer the question”.
• Ask the question again.
• “Let me explain to you how this works. I ask the questions, and you answer them.”
Generally, you need to be the one in control if it’s your deposition. Don’t look to opposing counsel to help you. But you may need to either accept evasive answers and plan to use them against the witness later, or go to the judge, depending on how bad it is. You should always try to keep a record of what is happening. Anything that won’t be clear from the transcript, say it out loud, such as:
• You’re referring to exhibit A.
• Please stop raising your voice
Generally, the person paying for the deposition controls the court reporter, such as when to go on the record or off the record.
Cross-examination is not usually done by the defending attorney in a deposition of his/her own witness. Most people want to expose as little of their witness as possible.
Remember you can and should request documents before and during the deposition. Any documents that the witness mentions, you should then request right then. Tell the opposing attorney and witness that you request those documents. They will usu-
ally ask you to send a letter. So keep track of the documents you are requesting, or else you can go through the transcript and find them. Some court reporters will even note the document requests automatically for you.
ESCALATING RESPONSES TO THE OBSTREPEROUS ATTORNEY
• Ignore – engaging won’t help you.
• Review the question – maybe it’s a good question, or you can rephrase it.
• Exploit – try to take advantage of the situation, portray the objection as insulting the witness’s intelligence.
• Avoid – avoid or change the topic, come back to it later.
• Slow the deposition – demonstrate that vague objections will simply yield more questions and you will still ask your ultimate question.
• Talk outside with the attorney, in the hall, away from the witness.
• Carry and cite authority.
• Make a record.
• Videotape.
• Go to the judge.
DEFENDING DEPOSITIONS
There are three primary areas that attorneys who are defending at depositions should be concerned about:
1. Witness Considerations
2. Objections when Appropriate
3. Clarification and Correction of Answers if Necessary
WITNESS CONSIDERATIONS
Witness Prep. You should not ignore the psychological element of witness preparation.
• Don’t skimp on the prep – even if your witness seems intelligent and experienced, and/or doesn’t know much about the specific facts.
1. For example – opposing counsel can start asking about “usual practices”.
• Say it over and over and over again during your witness prep –
1. Only answer the question that is asked
2. Don’t provide more information that is requested
3. Say as little as possible
4. “shortest possible answer”
5. Answer slowly, give me a chance to object
• Consider putting together a handout for your witnesses with what the deposition is about, help put them at ease, set ground rules for how to answer, what to do if you object and how to dress.
You need to have a prep conference (see above). Also do a practice dep, with a colleague asking questions and you defending. Never leave your witness without counsel at the deposition!
You can expect your witness WILL say more than you want them to say, almost every single witness does. You can expect they will answer without pausing to give you a chance to object. I think these are two main aspects of prepping a witness – “shortest possible answer/only answer what was asked” and “pause before you answer so I can object.”
If you know or can anticipate documents will be used with the witness, review those documents with him prior to the deposition. Be sure to instruct the witness not to answer a question he does not understand. Instruct the witness to listen carefully to any objections you make.
OBJECTIONS
Keep in mind the limitations on objections imposed by Rule 4:14-3(c): “ No objection shall be made during the taking of a deposition except…”
a. form of the question
b. assertion of a privilege
c. right to confidentiality
d. limitations imposed by court order
You’ll most likely find attorneys generally defend in one of two ways:
• Acrimonious/argumentative
• Lackadaisical/inattentive
The best way is: a middle ground, in accordance with rules. In that regard, note that objections based on “form” must be explained and made in such a manner as not to suggest the answer. Wolfe v. Malberg, 334 N.J. Super 630, 634 (App.Div. 2000)
So, if you are taking the deposition and you get a “form” objection, don’t let the attorney just say “objection, form.” Ask what’s the basis for the objection? There has to be a specific problem with the form, and the objection is meant to give the questioner a chance to correct it. (Because later on in a motion or at trial you can’t change the form and get an answer anymore, since the deposition is over.) If the defending attorney can’t give a basis, he will stop objecting, and/or the objection won’t be sustained later.
In that regard, the objections made at the deposition should be ruled on by the court later, if either party seeks to use that testimony.
• For form, the witness can still answer. If there is an actual problem with the form, the attorney ought to fix it, not just say “you can answer.”
• So, know the potential problems with form.
If you’re taking the deposition, make the other attorney specify (don’t tell him or her the options).
If you’re defending, object on form, specify the problem. If the attorney doesn’t fix, pursue your objection with the court later when he or she tries to use that testimony.
Problems with form can include:
• Ambiguous/vague
• Argumentative
• Asked and answered
• Assuming facts not in evidence
• Compound question
• Misquoting the witness
• Narrative
• Not a question (but rather a statement)
• What else? Not an exhaustive list?
Per the Rules, an attorney shall not instruct the witness not to answer a question unless the objection is based upon:
1. privilege,
2. a right to confidentiality,
3. or a limitation pursuant to a court order.
Once the deponent has been sworn, there shall be no communication between the de-
ponent and counsel during the course of the deposition while testimony is being taken. R. 4:14-3(f). EXCEPT with regard to the assertion of a privilege, right to confidentiality, or limitation pursuant to a prior court order. So that means you can’t discuss the objection with the witness unless you are discussing whether there might be a privilege objection, which would then allow you to tell the witness to not answer.
Again, this isn’t the same in every jurisdiction. Some (I believe) allow you to grab the witness by the elbow and march them out, and tell them to get it together or whatever.
CLARIFICATIONS and CORRECTIONS
You might not need to make them, especially if you are aware of omissions based on poor questioning by your adversary.
If you know that your witness misspoke or left something out that she should have included when a question was asked, you might want to clarify or complete the response . . . but you may have to do it without leading questions.
DEPOSITION TIPS
1. Impeachment nuggets – ask the question again or differently to get a clear yes or no without clarification.
2. Forgetful witnesses – if you think the witness is credible, you can refresh recollection, if not, use it against them later.
3. Difficult opposing counsel – don’t get sidetracked.
4. Speaking objections – call it out.
5. Form objections – make them say the problem with the form.
6. Controlling experts – fluster them by asking questions they don’t know the answer to.
7. Get experts to agree with you if you can.
8. Uncooperative experts – go over overly complicated answers in detail, they will stop being like that.
9. “Who does know” as a follow up to “I don’t know”.
*This article is presented in Mr. Kant’s personal capacity and represents his own personal views and is not intended to represent the views of any other person or organization. This is also not legal ad-
IT Security Tip: Make THIS password different from everything else.
You know you’re guilty of it: using the same password for everything. Believe me, I understand how annoying it is to try and remember all those passwords; and if you’re using the same password for sites that don’t share sensitive information, like a login to a news feed you like to read, then it’s generally okay.
HOWEVER, the ONE password you want to keep unique is your email password.
If an e-commerce site you’ve registered at or bought from gets hacked –and you’ve used the SAME password you usually use for everything to register at the site – you can pretty much bet hackers are going to gain access to your inbox. They’ll have your email and your password to the e-commerce site and will use that to hack in. From there, they’ll have fertile ground for getting all your data and other passwords.
