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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Thursday, January 4, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will guide trial lawyers through the dangerous area of deposition misconduct and creative judicial remedies. Whether dealing with an evasive witness or an obstreperous lawyer, courts are not shying away from issuing costly sanctions orders. Deposing counsel must know what tools are available to keep defending counsel and the witness in line. Defending counsel is placed between the Scylla and Charybdis of not coaching the witness and failing to control a witness.

Faculty

Anthony L. Cochran
Partner
Smith Gambrell Russell

Mr. Cochran represents individuals and businesses in a wide variety of matters. He has tried jury trials, bench trials, administrative and regulatory hearings, and medical peer review hearings. He has appeared on many panels and spoken at seminars on a variety of topics, including the application of the Daubert rule and a host of topics related to white-collar criminal law and investigations.

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Michael R. Gordon
Founder and Managing Partner
Gordon Law, LLP

Mr. Gordon has been representing businesses and individuals in all aspects of dispute avoidance and resolution since 1989. Some examples of the matters Mr. Gordon has handled include acting as lead litigation counsel for a major foreign bank sued for billions of dollars in connection with the bankruptcy of a large telecom company, successfully fending off a $100 million lender liability case against one of the five largest U.S. banks, and obtaining a $48 million judgment against a large California real estate developer. He is a frequent speaker and writer on a variety of topics related to litigation and is the former Co-Chair of the Commercial Disputes Practice Group at a global, AmLaw 100 law firm.

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Monica P. Witte
Partner
Smith Gambrell Russell

Ms. Witte is a litigation Partner at Smith Gambrell whose practice focuses on complex commercial litigation. Prior to joining the Firm, she was a litigation associate at Rogers & Hardin. Ms. Witte started her career at Jenner & Block in Chicago, where she represented clients in a variety of complex commercial litigation cases, including CERCLA, ERISA, corporate securities, and residential mortgage-backed securities litigation matters. She received her B.A, cum laude, from the University of Miami and her J.D. from the University of Chicago Law School.

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Description

Under Fed. R. Civ. P. 37(a) and (b) (and their state law equivalents), if a party fails to answer a deposition question, or provides an evasive or incomplete answer, that party can be ordered to answer and sanctioned for not doing so. This exposure to sanctions has been extended to attorneys as well. Thus, trial counsel must take steps to ensure such testimonial issues do not arise.

Courts have focused on three items in awarding sanctions: the conduct of the witness in answering (or not answering) the questions; the making of needless and "coaching" objections by counsel; and conversations between counsel and client held during breaks regarding testimony. Questioning counsel should know how to make a record of these actions to successfully bring them to the court's attention.

On the other hand, sometimes what seem to be evasive answers and needless objections are brought about by the actions of the questioning attorney. Defending counsel should also know how and what record to make in such instances, and how to best oppose sanctions motions.

Listen as this panel of seasoned trial attorneys reviews the rules governing deposition conduct for counsel and client alike. Learn appropriate steps for seeking and defending against monetary sanctions. Perhaps most importantly, come away from the webinar with the knowledge of how to avoid and prevent sanctionable behavior in the first place.

Outline

  1. Sanctionable conduct during a deposition
    1. Witness answer issues
    2. Counsel objection issues
  2. Making a record during the deposition
    1. What is (and is not) proper colloquy
    2. Memorializing compromise suggestions
    3. Video as behavior control
  3. Discovery motion practice
    1. Order to compel
    2. Sanctions orders
    3. Limitations on sanctions to compensation
    4. Applicability of sanctions to counsel
  4. Witness preparation to avoid problems in depositions

Benefits

This panel will review these and other relevant matters:

  • General principles concerning deposition conduct
  • Improper activity during a deposition
  • Making a record during the deposition
  • Motion practice
  • Witness preparation to avoid sanctionable conduct