November 27, 2017

Why title a book “The Modern Deposition?”  The Rules of Civil Procedure have changed only modestly over the past 20 years; the technology to record depositions is more varied and adroit, but not enough to warrant a new book; and the deposition remains the tool of civil practice, without an expansion into the criminal domain.


Yet the deposition is “modern” in one undeniable aspect – for every hundred depositions conducted, only a handful may ultimately lead to a trial.  The numbers are stark – according to the National Center for State Courts, in 2016 fewer than 1% of filed cases went to trial, and that number includes cases where a jury saw sworn but the matter then settled before verdict.

So modern depositions must be taken with an eye toward the notion that the case is much more likely to settle than to go to trial.  Much of the questioning technique may be the same, and discovery and ‘lock the witness in’ goals will still be part of deposition strategy, but the deposition also offers opportunities to push the opponent toward settlement on favorable terms.

This is the backdrop for THE MODERN DEPOSITION.  Authored by two Evidence and Advocacy titans – Professors Anthony Bocchino and David Sonenshein (with full disclosure – they are colleagues of this reviewer), the text offers all the traditional material in any deposition guide:  how/when to object, how to drill down, etc.  But the book also recontextualizes the deposition into the post-litigation world the above statistics show we are in.

To delve deeper into the text, here is a Q&A with co-author Anthony Bocchino:

Q: The book is called “the modern deposition.”  Seeing that title, one might think it is about technology or questioning in the age of millennials.  What is “modern” in your view?

A: It is a bit about the impact of technology (we advise video digital recording  and real-time transcription when the case supports the cost) but more about a new (Modern) paradigm for preparing for, taking and defending depositions given the reality that there will be no trial and each party must get to the ultimate fact finder (usually an ADR type , or via case-dispositive motion practice judge) the most important facts of the case from their source testifying under oath.

Q: If there are 2-3 changes in deposition practice (or theory) that a lawyer needs to know, what are they?

A: Witnesses must be prepared to provide all of the favorable facts for their case (contrary to the old saw ‘if they don’t ask don’t tell – we’ll surprise them’), based on well developed legal factual and persuasive theory.  “Defending Counsel” must be prepared to ask questions of deponents called by the other side, in order to be sure that all information that a party wants  a decision maker to have to fairly decide the case is provided under oath (not merely in an affidavit by lawyer written for a  client or  representation by counsel in a settlement memo) and at a time when it can be challenged by opponent (a not likely occurrence for lack of preparation).  Finally, and especially for Plaintiff – Plaintiff’s counsel should take the depostions of their own  damage witnesses so the ADR decision maker can fully appreciate what has happened to a person and what they have been forced to deal with.  Otherwise the mediation turns into a discussion of liability and a match problem based on the mediator’s experience (i.e all back injuries are the same).

Q: How does this book differ from other available texts?

A: The Modern Deposition paradigm.  As important are its deposition transcript examples of points made.  Many books say “do this” but do not demonstrate how “this” translates into “this is how you do this.”

Q: If there is one valuable ‘non-modern’ rule or practice that you and your co-author still emphasize, what is it?

A: We offer the well known information gathering techniques described in terms like “NITA funnel approach” which we describe (and isn’t really a funnel) together with the full variety (gathered from various sources and experience) of questioning techniques while emphasizing the need for case theory; and the use of exhibits (including documents) designed to guarantee the completeness of information gathering.

The book is lengthy and can be read straight through or chapter by chapter as needed.  Reflecting decades of experience, it is a valuable tool for those who will (or already do) litigate civil matters.

[Self-published to permit prompt access to the book, THE MODERN DEPOSITION is available online. ]