Great web sites

These are web sites I have found over several years, which are informativwe, funny, fascinating, and/or fabulous.  If you have some I should add, send me an e-mail at info@johnlowepc.com. 

http://leg1.state.va.us Code of Virginia et al.

 http://casesearch.courts.state.md.us/  MD Judicial search

  http://www.reallegal.com/techSupportETranViewer.asp  All you need to do is download the e-tran reader from (depo files in PTX format)

 www.dogpile.com search site

  http://www.msba.org/sec_comm/listserves/index.htm MSBA Archives
 When you need to use the service, go to www.msba.org, click on Committee/Sections and then Listservs. In addition to the directions, there is a list of ALL MSBA listservs.

http://www.tropicalglen.com/       not your ordinary juke box

www.kayak.com travel

 www.mofoflix.com      Miscellany

 www.michaelbach.de/ot Optical illusions

 www.zango.com     Miscellany

 www.urbanlegend.com Debunker

 www.swope.com Debunker

 www.truthorfiction.com Debunker

 www.whatstherule.com English grammar rules

 www.boingo.com/download.html wifi connection

 www.ofoto.com photograph program 

 www.abercrombiekent.com safaris

 www.bigfive.com safaris

 www.micato.com safaris

 www.wildlife-safari.com safari

 www.desktop.google.com  search your own hard drive with Google

 www.audible.com audio books

 www.bhphotovideo.com leading retailer of imaging equipment at discount

 www.cooking.com cooking

 www.startreatment.com gift baskets

 www.magellans.com travel equipment and gadgets

 www.brora.co.uk cashmere products

 www.nei.nih.gov/health NIH health

 www.asklyrics.com Type in a key word and get song titles with that word.

Then click on the song title and get the complete words to the song.

 www.mysterywriters.org Mystery Writers of America

 www.vmyths.com Internet virus hoaxes

 www.spywareguide.com spyware guide

 www.pchell.com/support/spyware.stml spyware guide

 www.gardenlist.com garden catalogs

 www.seeamerica.org travel info

 www.mayoclinic.com fitness fun

 www.number-logic.com sudoka brainteasers

 www.petersons.com/summerop summer camps

 abuse@frontbridge.com forward spam to this site for addition to filtering process

clientservices@frontbridge.com

 www.legalregister.com The Legal Register  202-659-9240

Customer Service service@legalregister.com

 www.theletters.washingtonpost.com

entertainmentbestbets@theletters.washingtonpost.com

 www.soople.com adds power to Google’s search capability

 www.theamericanidle.org Blog site     Very funny 

 www.salvationarmy.com valuation guide for contributions

 www.chessclub.com Internet chess

 www.realage.com health 

 www.mypyramid.gov what to eat

 www.marylandcourts.blogspot.com Maryland Courts Watcher

 http://taxation-business.com/mcw/faq.pdf

http://snipurl.com/16k96

 www.rentvillas.com European apartments and houses

 www.insuremytrip.com lists of various insurers

 www.zillow.com aerial photo, map, et al of houses

 http://mrdda.dc.gov/activities/default.asp  D.C. daily activities

 www.bnm.com Compare rental car rates – US and abroad

 www.vocats.com past issues of “the l.i.n.k.”

  www.smokinggun.com     investigative site

 www.wineloverspage.com wine information

 http://local.live.com Google for printing maps, et al.

 http://www.poodwaddle.com/worldclock.swf   Google offshoot

 www.enature.com  On-line nature guides

 www.sciencedaily.com  (click on health center)  latest health and medicine news.

 www.usa.gov/Citizen/Services.shtml all-in-one guide to government services

 www.donquijote.org/members on-line Spanish lessons

 www.thegeezerbrigade.com senior humor

 www.bartleby.com classic literature

 www.cyberparent.com/gran grandparenting

 www.acbl.org on line bridge

 www.seniorlaw.com senior law issues

 www.rxlist.com prescription drug info

 www.smartertravel.com/senior senior travel ops

 www.disabilityinfo.gov disability resources

 www.rinkworks.com/brainfood brain food

 www.refdesk.com general reference web site

 http://www.actar.org/reports.html Various state codes

 http://www.courts.state.va.us/forms/circuit/  Virginia Courts web site

 http://www.courts.state.va.us/caseinfo/home.html/  Virginia Courts web site

 www.edmonds.com cars

 www.carfax.com cars

http://www.findlaw.com legal research starting point

 http://www.versuslaw.com Full text opinions 50 states

 http://www.knowx.com Public information judgments, real estate info, bankruptcy status

 http://www.microsoft.com/industry/legal

 http://igm.nlm.nih.gov medical research gateway

 http://www4.ncbi.nlm.nih.gov/PubMed National Library of Medicine access to Medline database

 http://www.kbb.com Kelley Blue Book for cars

 http://lawlib.wuacc.edu/washlaw/washlaw.html Washburn U. Law School — good research site

 http://www.ljextra.com Law Journal site — good for legal news

 www.accurint.com Hunt for people.

 www.napps.org Process servers.

 www.publishersmarketplace.com Subscription web site (also has “publisherslunch.com).

 http://dalesdesigns.net/world_clock.htm Special clock

 http://www.jokes.com/funny/ Jokes

 http://law.freeadvice.com/resources/personal_injury_statute_of_limitations.htm  PI SOLs

 http://www.courts.state.va.us/caseinfo/home.html               Virginia casesearch website

 http://epwsgdp1.courts.state.va.us/gdcourts/caseSearch.do?index=index    Va.  general district court traffic and criminal dockets

 http://www.montgomerycountymd.gov/mc/judicial/circuit/services/crtadmin/admin/admin.html Montgomery County Maryland court administrative website

 by John Lowe

 In jury trials, the threshold problem in obtaining a fair jury is to somehow get the jury to be open and candid in voir dire so that counsel and the Court can determine which ones have the ability to sit as fair and impartial jurors on that particular case. 

 While the problem in obtaining a fair jury does not end with that threshold, the problem is magnified ten-fold when that threshold problem is not solved.

 It has been my experience in over 30 years of trying jury trials that it is rare that counsel or the Court are able to obtain complete candor from jurors during voir dire.  The principal reason for this, based on my many debriefings of jurors after trials have been completed, is that the jurors perceive the jury selection process as a question of, “Are you a good enough person to sit as a juror?”

 No one wants to be branded as not being “good enough” to sit on a jury.  That becomes a judgment about the person’s character, integrity, family background, personal opinions, and a host of other factors, which are very sensitive and important to each juror. 

 To have those factors weighed by lawyers and a judge and found to be “so bad as not to be suitable for qualities in a juror” is something which most jurors dread.  They envision their friends, neighbors and family members looking at them skeptically and asking, “So you weren’t good enough to sit on the jury?”. 

 Now anyone who looks at the purpose of voir dire and the mechanics of it realistically knows that such reactions are unfounded and do not reflect the purpose or result of jury selection.  Nonetheless, it is that gut reaction of jurors during voir dire which causes them to be closed, secretive, and deceptive.  Jurors simply do not want to be judged wanting when it comes to jury selection, and they will go to great lengths, consciously or unconsciously, to avoid being branded as “unfit”.

 How, then, can counsel and the judge cause jurors to open up to them, to reveal their true feelings and to be candid? 

 I have confessed to many trial advocacy students I havetaught that I am embarrassed that it took me so many years to devise the simplest technique of all for obtaining candor from jurors:  change the name of the game from “Are you good enough to sit on the jury” to “Tell us enough about yourself so that the judge can determine which kind of jury you are best suited to sit on.”  How is this accomplished?  Simple. 

 While it is preferable to have the judge present the following discourse to the jurors as a preamble to the process of voir dire, either counsel can give the jurors the same explanation in order to reassure them that the purpose and result of voir dire will not be to determine whether they are good people, or trustworthy enough to serve as jurors, but rather whether they are better suited for one type of jury or another.  It is preferable that the judge give the discourse to the jurors because he has the status of the authority figure in the courtroom and they are more likely to take it to heart and be reassured if they hear it from the judge. 

 The discourse begins with an explanation along these lines:

 ”Ladies and gentlemen of the jury, by your preliminary answers to the questions about your citizenship and residency, you have qualified to serve as jurors in this court.  The remainder of the process, which we call jury selection or voir dire, is aimed at determining which type of jury you are best suited to sit on as a juror. 

 ”Because of the different life experiences which different jurors have had, some jurors are better suited to sit on criminal trial juries and others are better suited to sit on civil trial juries.  Even in civil trials, some jurors may be better suited to sit on personal injury trials, while others are better suited to sit on technical cases, such as patent trials 

 ”The questions which will be asked of you by counsel and the Court are aimed at helping us to determine which type of jury you are best suited for.  The result may be that you will be excused from jury duty today and will serve on a different jury on a different day in this court.  You should not take any of the questions to be a judgment on whether you are a good citizen or not, as it has already been determined that you are qualified in citizenship to serve as a juror in this court. 

 ”Since it is important to determine which kind of case you are best suited for, it is important for you to be as open and candid with counsel and the Court as possible in answering the questions which are asked of you.  It is only if we have the most accurate information about what your life experiences may have been and what opinions you may hold, that we will be able to determine which kind of jury you are best suited to sit on. 

 ”Some of your answers may be such that the law recognizes that you would be better suited for a different type of jury, and the judge will excuse you from this trial so that you may serve on a different type of jury.  When that occurs, it is called excusing a juror for cause.  But that only means that this is not the type of case for which you are best suited, because of a reason which is specified in the law. 

 ”Other questions may reveal facts which do not make a clear-cut determination of whether a juror is best suited for this particular case, and it will be up to the lawyers to excuse certain jurors whom they believe would be better suited for other types of jury duty, in what we call the exercise of peremptory challenges. 

 ”All of these challenges, whether for cause or peremptory challenges, have the same purpose:  to determine which type jury you would be best suited to sit on and to seat a jury for this case comprised of jurors that are well suited to try this type of case. ”

 The experience of the author in the use of this technique has been remarkable.  Jurors will admit to the most remarkable prejudices.  They will freely acknowledge that they will be unable to follow instructions on the presumption of innocence in criminal cases.  They will openly admit to predispositions toward one side or the other. 

 In short, they will be candid and open, providing the Court and counsel with the very information which they most dearly need in order to assure that the jury which is seated is a fair and impartial jury to the extent that our system of justice can provide. 

 In one criminal trial in which I used this technique, with the preamble explanation about the purpose of jury selection, 10 out of the 20 prospective jurors on the initial panel admitted to being unable or unwilling to afford the defendant the presumption of innocence, when the question was asked.  That was simply unheard of in my previous experiences and in the experience of any lawyer I have spoken with. 

 Jurors are normally unwilling to admit that they will not give the defendant the benefit of the presumption of innocence, probably because it seems un-American or unjust or wrong, and jurors therefore don’t want to admit to it. 

 However, when they believe that such a candid answer may simply determine that they are better suited to sit on a civil jury, the truth comes out and the Court can identify those jurors who ought not to sit on a criminal jury trial because of their inability to afford the defendant the presumption of innocence. 

 Once the Court and counsel change the name of the game from “Who is a good enough person to sit as a juror?” to “Which type of jury are you best suited to sit on”, the jurors will enable the process truly to be a process of selecting fair and impartial jurors for the trial at hand.  This technique also will allow the jurors who are not selected to leave the courtroom with their self-respect and a high regard for the process which enabled them to be identified as jurors who would be better suited to sit on a different type of jury than was being tried in court on that day. 

 One of the principal benefits of this system is that it is totally impartial to both sides in criminal and civil cases.  There is no predisposition in favor of either side by having the jurors understand that they can really be honest and open in answering voir dire questions.  Everybody wins with this approach to voir dire:  the parties, the Court, the public and the jurors themselves.

 Remember the first three letters  S T R

 S  — ask the person to Smile

 T — Ask the person to Talk and speak a simple sentence

 R — Ask him to Raise both arms.

 If the person has trouble with any one of these tasks he may be having a blood clot or stroke.  Immediately call 911.

 Now the fourth sign — ask the person to stick out his tongue.  If the tongue goes to one side or the other, he may be having a stroke.

POINTS FOR PROSPECTIVE WITNESSES

i) ALWAYS TELL THE TRUTH. 

Your testimony in this deposition is the same as if given in formal court.  As a witness it is your absolute duty to tell the truth to the best of your ability.  Do that and let the chips fall where they may ‑‑ what effect the facts may have on the case is solely the concern of the judge or jury. Don’t be embarrassed to admit that you don’t know the answer to a question.

There is not faster way to lose a case than to get caught playing fast and loose with the truth by guessing, exaggerating, or fabricating.  Many lawyers will try to convince you that they do not know the subject of the deposition in hope that you will be tempted to try to get away with something when answering.    

ii) LISTEN TO THE QUESTION AND BE SURE YOU UNDERSTAND THE QUESTION. 

Listen to the question.  Think about what the question is asking.  Think about the answer.  Formulate the answer in your mind.  Answer out loud.

If you don’t absolutely understand a question, ask the court reporter to read back the question or ask the examiner to explain what he means.  This is especially important if the question is vague or contains value‑judgment words, such as, “Isn’t it a fact that John Jones was always open and above board in his dealings?”  A question like that can cause your answer to be misleading unless you have the questioner clarify just what is meant by the question.  Be particularly wary of questions containing double negatives and do not answer until you are sure you know what is being asked.  Ask for the question to be rephrased or give and explanatory answer that sets forth your understanding of the question (For example, “If you are asking whether I failed to tell him, the answer is ‘no.’”).

iii) LISTEN TO OBJECTIONS MADE BY YOUR LAWYER

Understanding the objection may enable you to gave a complete and proper answer.  Although your lawyer is not attempting to give you some kind of improper signal by his objections, you may still be alerted to something in the question if you listen to the objection.

iv) DON’T BE AFRAID TO TALK TO YOUR LAWYER 

If you have a question or do not understand something, ask for clarification.  If you think your question should not be spoken to anyone but your lawyer, ask your lawyer to confer in private, either by whispering or by stepping out of the room.

v) TAKE YOUR TIME WHEN ANSWERING A QUESTION.  

Don’t answer too quickly.  Think before answering so that your answer is clear.  However, answer questions in a direct, straightforward manner.  Give your lawyer the opportunity to make objections, if appropriate.

vi) ANSWER ONLY THE QUESTIONS ASKED.  DON’T VOLUNTEER INFORMATION YOU ARE NOT ASKED. 

Answer the question fully and to the best of your ability, but do not volunteer additional information beyond a complete answer to the questions asked.

For example:  if you are asked if you know who wrote a memorandum, your answer would be “Yes,” but you would not go on to volunteer who the person was.  The next question may be “Who wrote it,” but let the examiner ask that before you say who wrote it.  Your lawyer may not have a proper objection to the question of whether you know who the author is, but may have an objection, such as privilege, as to your being asked to give the identity of the author.

In your living room you can inject comments nobody has asked you to make.  In court or during a deposition you can’t.  Confine your answers to what you are asked, because information you volunteer may be inadmissible evidence or may be irrelevant to the case.  If you are right that the information you might want to volunteer is important, one lawyer or the other will almost certainly ask you about it.

Do not add to your already-complete answer because the examiner sits and looks at you expectantly without starting another question (as though waiting for you to finish).  Simply wait for the next question.

vii) DON’T TAKE ANY PAPERS TO THE DEPOSITION OR WITNESS STAND WITHOUT CHECKING WITH YOUR LAWYER.

Papers you have in your possession at the deposition or when you are on the witness stand are subject to your having to produce them for the other lawyer to examine.  Since such papers may contain privileged or otherwise sensitive information, do not take any papers with you unless you screen them with your lawyer first, in private, preferably well ahead of the deposition or testimony.

There is nothing wrong with having notes when you are testifying on deposition or at trial.  They may be helpful, particularly if they contain statistics or detailed information that is hard to remember.  But the opposing lawyer may look at the papers.  If there is important information for  you to have with you, a copy can be made for you of the essential, nonsensitive information and the remainder of the papers can remain out of your immediate possession.

viii) ANSWER OUT LOUD.  

The court reporter needs an audible answer in order to transcribe your answer.  A head nod or an answer of “uh-huh” cannot be transcribed to accurately reflect your answer.

ix) BE YOURSELF. 

Let the lawyers do the “lawyering” and do not base your answer on what you think might be the “right” thing to say.  Don’t let the examiner put words in your mouth.  Use language you feel comfortable with in answering the questions.

x) DON’T ARGUE WITH THE OPPOSING ATTORNEY 

Maintain a normal tone of voice.  Be courteous.

xi) DON’T JOKE OR TRY TO BE FUNNY.  

Opposing counsel may later argue that you did not take your oath seriously.  Worse still, what may appear to be funny when said–perhaps with an inflection indicating that you are attempting to be funny–may look deadly serious when the testimony is transcribed.  The humor attempted in a deposition usually disappears in the cold transcript when it is read by a judge or jury at the trial.  You may also appear to be crude or cavalier about the truth or the seriousness of the case.

xii) IF YOU SEE A LAWYER STARTING TO STAND UP, WAIT FOR THE OBJECTION

If you see a lawyer starting to get up, he probably wants to object to a question you were asked.  He has the right to have the judge rule on the objection before you answer.  Don’t jump the gun and answer first.  If the judge says, “Objec­tion overruled,” then you may answer.

xiii) DO NOT TELL WHAT OTHER PEOPLE SAID OR WHAT YOU THINK, UNLESS YOU ARE SPECIFICALLY ASKED TO DO SO 

If you are asked what someone said or what you think about something you can  answer the question.  But in most cases “hearsay” and opinions are improper in court.  Unless you are specifically asked to tell about a conversation or to give your opinion, assume that every question calls for what you actually observed or did.  Above all, don’t volunteer hearsay or opinions you are not asked to give.

xiv) YOU MAY BE ASKED ABOUT PRIOR STATEMENTS 

Under the law, opposing counsel may get to see prior statements you have made to me or my associates.  One group of questions may be designed to learn whether you made such statements.  If you did sign a written statement, or if someone took notes while you were interviewed, there is no secret about that.  On the other hand, if you are not sure, do not assume that someone was taking notes.  If you are not sure whether notes were taken or whether you signed a statement, you can simply say that you can’t recall or that you don’t know, whichever is correct.

xv) DON’T BE UPSET IF THERE ARE SOME INCONSISTENCIES 

Any time a person tells the same story twice, no matter how carefully, there are likely to be at least some inconsistencies. If there is an inconsistency with a prior statement you made, simply tell the best recollection you have of what happened, and if there is an explanation for the inconsistency, give it.  Some­times it may not be your mistake, but the mistake of the one who took your statement.  If that is so, simply say that your recol­lection is that you told him something else, and you believe it’s his mistake.  If your present testimony is the truth, give the best truthful explanation for any inconsistencies; for example, that you don’t know why you said something different on that occasion, but it may have been a memory lapse, or perhaps you misunderstood the question.  If your present testimony is the truth, it is good to reassure the attorney that regardless of any apparent inconsistencies with what you have said on past occasions, you do know that what you are saying right now is the truth as you know it.

xvi) EVERY WITNESS MAKES MISTAKES

Do not get upset of you find that you have made one.  Correct the mistake if you can do so.  Talk with your lawyer first, if preferable and convenient.  Any doubts should be resolved only after discussing them with your lawyer.  Mistakes may be corrected when you review the deposition transcript, but let you lawyer know during the deposition, if possible, as your lawyer may want to correct the matter with a series of questions.

xvii) IF YOU GET CAUGHT IN AN INCONSISTENCY, DON’T COLLAPSE

What happens next will depend on what you are asked.  If your answer now is correct and your earlier statement was incorrect, say that.  If your present testimony is in error, because you misspoke, forgot the correct answer, or for some other reason, make it clear that your earlier answer was correct.

Rehabilitation (explanation of the reason for the inconsistency) is best done at trial, or at least after consultation with your lawyer; however, sometimes a prompt and simple explanation on the spot will take the sting out of the effect of the inconsistency.

When a witness is caught in an inconsistency with a prior statement, some lawyers like to ask, “Were you telling the truth then or now?”  The implication is that you were lying the other time.  It is perfectly proper to say, “I was doing my best to be truthful both times.  I made an inadvertent mistake (or misstatement) just now (or when I made the earlier statement.)”

xviii) YOU SHOULD CORRECT, CLARIFY, OR COMPLETE ANY ANSWER THAT YOU REALIZE NEEDS CORRECTION, CLARIFICATION, OR COMPLETION AS SOON DURING YOUR TESTIMONY THAT YOU REALIZE THE NEED 

Just say something to your lawyer or speak out before the next question, explaining that you want to modify your earlier answer.  You will also be given a chance to read your deposition after it is typed up and correct any errors or answers that need your modification in order for the answers to be complete and correct.

xix) IF ASKED ABOUT A DOCUMENT, EXAMINE THE DOCUMENT BEFORE ANSWERING 

Your examination should be as thorough as necessary according to the nature of the question.  (If asked whether you have ever seen the document before, you need not read the entire document unless you really believe that is necessary, but should skim through the document as much as necessary to assure yourself whether you have seen the document before.)  Be careful not to say that you have seen that document–as opposed to a copy of that document that may not be that particular copy–unless you are sure it was that copy.

If asked questions about a document that depend on your memory because the document is not available for you to examine it, only answer if you recall the document.

xx) YOU CANNOT BE ASKED LEADING QUESTIONS ON DIRECT  EXAMINATION 

You cannot be asked “leading” questions by me on direct examination.  A leading question is one which contains a suggested answer.  For example, “Were you able to see the Defen­dant look at the car?” is leading.  It suggests the fact that the Defendant did look at the car, which may not yet be in evidence.  Or, “Isn’t it a fact that. . . ?” is a leading question.  Since I may not lead you, you have to remember all of the facts pertinent to every question you are asked without help from me.  Take your time and be sure to answer the question completely.  If I ask, “Did anything else happen at that time?” or, “Was anything else said?”, be sure you have completed your answer and you haven’t omitted a fact which you mentioned to me or my associate previously.  Take your time and think back to what else may have happened which you failed to mention.  Do not quickly answer “No” unless you are sure your answer is complete.  But the fact that your lawyer asks if anything else was said doesn’t necessarily mean that there was.

xxi) YOU CAN REFER TO DOCUMENTS IF YOU NEED TO 

It is  usually more effective if you can testify from memory without looking at anything.  But if you need to look at something to refresh your recollection, you may.  It is entirely proper for you to ask from the witness stand, either on direct examination by me or on cross‑examination by opposing counsel, to look at a copy of your statement or notes if you believe that would refresh your recollection about some fact.  If you do look at a document to refresh your recollection,the opposing attorney will have the right to look at the document before he cross‑examines you.

xxii) DON’T GUESS OR SPECULATE

If you don’t know the answer to a question, just say so (“I don’t know” or “I don’t recall.”).  Everyone knows that recollections fade over time.   Do not guess if you don’t actually know the answer. 

If you know most of the answer, but not all of the details, you can say so.  For example, if you are asked, “When did you last see John Jones?” and you know the month or year, but not the exact date, don’t say, “I can’t recall;” say that you can recall the approximate date, but not the exact date, if that is so, and state it to the best of your recollection.  But never give an answer if you have no first‑hand information, unless you indicate that your answer is based on what someone else informed you or what you read in a document (you might give such an answer during a 30(b)(6) deposition where you are a designee of the corporation).

There is an important difference between a guess and an estimate.  If you have a basis for making an estimate, but cannot say exactly, say that and then say what your best estimate is.

There is also an important difference between a guess and an inference or conclusion that is based on a logical connection to facts you know.  For example, if there is no snow on the ground when you go to bed, but there is snow in the morning, you could properly infer or conclude that it snowed during the night.  On the other hand, if you flew into an airport several hundred miles from your home and found snow on the ground when you arrived, you would have to guess when the snow had fallen.

xxiii) IN TESTIFYING ABOUT CONVERSATIONS, MAKE IT CLEAR WHETHER YOU ARE QUOTING, PARAPHRASING, OR SUMMARIZING

xxiv) NEVER CHARACTERIZE OR BOLSTER YOU OWN TESTIMONY BY SAYING “IN ALL CANDOR,” “HONESTLY,” “TO TELL THE TRUTH”

xxv) BEWARE OF ABSOLUTES, SUCH AS “ALWAYS,” “NEVER,” “COMPLETELY,” OR “ABSOLUTELY” 

Sometimes using such words is necessary to give a correct and complete answer, but you should reflect carefully before answering in such absolutes.

xxvi) DO NOT ASSUME THAT LONG PAST EVENTS ARE ALWAYS DIM IN YOUR MEMORY

Some witnesses will say in answer to a question, “That was five years ago and so I can’t remember!” or, “My recollection is poor for what happened that far back”.  This is usually wrong and misleading.  The importance of an event is usually more important than how long ago it was in determining how well you can remember it.  Charts of memory prove that most forgetting takes place within a very short time after the event.  You may remember details of your special birthday party ten years ago and yet not remember what you had for breakfast two days ago.  If what you saw or heard struck you as important or unusual, you can probably remember it clearly even if it was a long time ago.  If that is true, and if you are asked, say so.  If you don’t remember something, just say that you don’t remember.  The chances are that you don’t remember it because it didn’t strike you as important at the time. 

Sometimes an opposing lawyer will ask how you can remember a pertinent fact from a long time ago, but not other facts from the same time period.  For example, how can you re member that the light was green, when you can’t remember what you had for breakfast on the same day, or what your spouse was wearing that afternoon?  It is perfectly natural to remember important or significant events, such as the color of a traffic light immediately before a crash, longer than you remember routine or insignificant events.  It may also be that you can remember a date from long ago by associating it with another event, such as a birthday of a family member on the same day.

xxvii) BEWARE OF A SUMMARY OF YOUR PRIOR TESTIMONY BY THE EXAMINER

Whatever you said on another occasion or earlier in this testimony is best determined by the transcript (“the record”).  This frequently occurs when a lawyer for a second party begins examining a witness.  (“Now, as I understand your testimony . . . [summarizing].”  Look out!)

xxviii) DO NOT AGREE TO SUPPLY ANY DOCUMENTS, LETTERS, OR RECORDS REQUESTED BY THE EXAMINER 

Simply refer any such request to your lawyer.  Your lawyer will either answer the request or take it under advisement. Don’t volunteer that you have such things, but acknowledge that you do, if asked.

xxix) AVOID EVEN THE SLIGHTEST OBSCENITY, VULGARITY,  PROFANITY, ETHNIC SLURS, GENDER SLURS, OR DEROGATORY PERSONAL REFERENCES

xxx) ASSUME THAT EVERYTHING IS “ON THE RECORD”

You may be questioned even conversations you have with others on breaks.  You cannot say, “off the record” and thereby place your comments off the record.  Consult with your lawyer about anything that you do not want “on the record.”

xxxi) IF THE EXAMINER APPEARS NOT TO UNDERSTAND YOUR BUSINESS OR TECHNOLOGY (OR ANYTHING ELSE), DO NOT ATTEMPT TO EDUCATE THE EXAMINER

xxxii) NEVER GET ANGRY 

Some cross‑examiners try to get witnesses angry so that they will make an error that the cross-examiner can dramatize.  When you are angry, you are least likely to do your duty as a witness, which is to give truthful and accurate answers.  If a lawyer tries to anger you, remember that he has a purpose.  Your best reply is to remain absolutely calm and answer the questions.  Don’t try to “do battle” with the opposing lawyer.  Leave the “fighting” to the lawyers.  Nothing a lawyer says is evidence of anything unless it is answered affirmativelyby the witness.  Remember that you are a witness; you are not on trial in the case, no matter what you may be asked.  If questions are insulting, I may object, but it is much better if the witness can remain calm and handle every question without help from me.  If you have made any mistakes in connection with the case or your testimony, just admit them and the suspense will be gone from the subject.  If you haven’t made any mistake, you should have no problem  either.  If the examiner is snide, sarcastic, nasty, and rude, do not respond in kind.  Instead, kill the lawyer with kindness and courtesy.

xxxiii) BEWARE OF COMPOUND QUESTIONS 

If you are asked several questions rolled into one, it will usually be impossible to answer accurately unless you break them down individually.  In such a case, you may say that the question really contains several separate questions which you will try to answer one by one.   Or if the question is too long, you can ask the attorney to break it down and ask you the questions one at a time.  (“You just asked two different questions.  Which one would you like me to answer?”).

xxxiv) BEWARE OF LEADING QUESTIONS CONTAINING HALF‑TRUTHS

Witnesses are frequently asked leading questions sug­gesting information that is either half true or contains facts not within the witness’s knowledge.  Such questions frequently sound plausible on their face, and there is a temptation to answer them “Yes” or “No” when that would not be accurate.  If a question contains information that is partly true and partly false, an explanation is necessary.  The explanation should be in your own words.  Don’t allow a cross‑examiner to put words in your mouth.  Remember that the judge or jury will draw conclusions from your answers.  The lawyer is not there to engage in polite conversation.  He is trying to establish facts that he thinks will help his client.  It is your duty to see to it that whatever is established by your testimony is “the truth, the whole truth, and nothing but the truth!”

xxxv) BEWARE OF “YES” OR “NO” ANSWERS 

Some witnesses have the notion that all questions should be answered “Yes” or “No”.  That is frequently untrue.  Many questions cannot be answered “Yes” or “No”, because they contain half‑truths or ambiguous phrases that can be misinterpreted later if answered “Yes” or “No”.  An example is the old saw, “Do you still beat your wife?”  These are questions that call for an explanation and call for a response in which you state the facts of what happened in your own words. 

If the lawyer asks you to answer “Yes” or “No”, you are entitled to tell him it can’t be answered “Yes” or “No” without

the answer being misleading. If he insists, you can say, for example, that if it has to be answered “Yes” or “No”, you suppose the answer would be “No”, but that you would need to explain why.  Then proceed immediately to give the explanation necessary to make your answer complete and correct.  The court will not direct you to answer only “Yes” or “No”, unless the question requires that kind of answer.  Nonetheless, when a question can fully and correctly be answered “yes” or “no”, it is best to limit your answer to that, and then wait for the next question.

xxxvi) “ISN’T IT A FACT?” 

Be careful of questions that start, “Isn’t it a fact that. . . ?” or, “The fact is . . ., isn’t it?”  These are usually leading questions containing implications that may only be partly true and that require an explana­tion.

xxxvii) “WHICH IS TRUE?” 

Be careful of questions that start, “Which “is true, [A or B]?”.  Frequently neither A nor B will be true!  For example, which is true:  2 plus 2 is 8, or 2 plus 2 are 8?  The answer is:  “Neither; 2 plus 2 are 4.”  Similarly, beware of questions like, “Was it A, or was it B?”.  It may not have been either.

xxxviii) BEWARE OF EXACT DISTANCES AND TIMES  

The cross­ examiner will frequently suggest to you distances and times of events, when you do not recall the actual time or distance precisely.  Do not agree with him unless you would independently arrive at the same estimate as he gives.  If you make an esti­mate, be sure to say that it is only an estimate.

Studies have shown that witnesses give different answer when asked “how small,” rather than “how large;” or “how slow,” rather than “how fast;” or “how short,” rather than “how long” (and vice versa).  Be careful not to be misled by the characterization of the examiner.

xxxix) YOU HAVE TALKED WITH ME OR MY ASSOCIATE 

There is no secret about the fact that you have talked with me or my associate and, with our help, have prepared for your appearance and testimony.  Indeed, once you are on the stand there is no secret, of course, about anything you know about the case.  You will be under oath to tell whatever you know in response to questions that you are asked.  Some witnesses think there is something improper about talking to an attorney for a party before trial and, when asked if they talked with anyone, will answer, “No”.  Naturally, the credibility of such a witness is entirely de­stroyed because a lawyer normally will not put a witness on the stand without talking to him first or at least don’t know which­ever is correct. 

However, your conversation with me may be the subject of leading questions designed to create a false impression.  For example, if you are asked, “Did you discuss your testimony?”,  and you say, “No”, the impression  is that you didn’t talk with anyone; if you say, “Yes”, the implication is that you were told what to say.  Here, as with other leading questions, state the complete pertinent facts in your own words.  For example, if it is true, you might say that you talked with me and I asked you questions, and then I talked with you to see if my impression of what I knew was correct.  It is always appropriate to assure the attorney that I told you to tell the truth when you testify.  That instruction is contained in paragraph 1 of this document, in addition to any similar verbal instructions I have given to you.

xl) LOOK AT THE JURY OR JUDGE WHEN ANSWERING 

The jury or the judge are the persons who need to hear your testimony.  Try to look at them when answering the questions from the attor­neys.  It may help to look at the attorney asking the question to be sure you hear and understand the question, but then turn and look at the jury or judge to give your answer.  If you forget this when I question you, I may point unobtrusively towards the jury or judge to remind you to speak and look towards them.

xli) USE ALL RECESSES AND BREAKS TO FOLLOW ME TO A PLACE WHERE WE CAN CONFER IN PRIVATE 

Beware of talking with anyone in a rest room or a snack bar.

xlii) DON’T CHAT WITH THE OPPOSING ATTORNEY DURING OR AFTER THE TRIAL 

Remember, the other attorney is our legal opponent.  Be polite, but don’t let friendliness seduce you into saying things that may disclose trial strategy or confidential information.

xliii) BE CAREFUL WHERE YOU TALK WITH FRIENDS, OTHER WITNESSES, OR MEMBERS OF THE TRIAL TEAM 

People around you may be allied with the opponent or may be potential or actual jurors.

xliv) YOU DON’T HAVE TO DISCUSS THE CASE WITH ANYONE. 

It is possible that opposing counsel or someone on his behalf may ask to talk with you about the case.  You are entirely free to do that if you want to.  But you don’t have to.  Whether you do or do not is entirely up to you.  It is not up to me to tell you that you should or that you shouldn’t discuss the case with opposing  counsel.  But you should understand that you have no legal obligation to talk with anyone unless you wish to.  The only time you are required to answer questions is on the witness stand on direct or cross‑examination.  If opposing counsel wants to subpoena you, they can do so and you will have to answer their questions on the stand or during a deposition when my associate or I are present.  Those are the only times you are required to talk. 

If you do discuss the case with opposing counsel or his representative prior to taking the stand, remember that you will be asked about any claimed inconsistencies between what you say on the stand and what counsel may believe you told him.  You will not have a stenographic transcript to establish what you said or did not say.  Even if you choose to talk with someone about the case, you have the right to refuse to allow the conversation to be tape recorded, if you prefer that it not be.  In the event, of course, that you are subjected to any threats or pressure, you should contact me or the judge immediately.  Should that happen, try to write down exactly what was said to you as soon after the event as you can.

xlv) YOU MAY BE INTERRUPTED. 

When you explain an answer, you may often be interrupted by the cross‑examiner, who will start the next question.  Let him finish his next question, but then bring him back to your unfinished answer by saying firmly but courteously that before you answer the question he just asked, you want to finish your answer to his last question, because he interrupted you before you had finished your answer.  This is very important because the cross‑examiner may try to stop you before you have given the second part of the answer that explains and interprets the first part of the answer.  You have to say whether you were finished, because I may not know if you were through or not.  However, do not get angry or sarcastic; remain as polite as you can, even though the attorney may be very rude.  Treating him with kindness and patience is the best defense to rudeness.

xlvi) LOOK AT THE JURY OR JUDGE WHEN ANSWERING. 

The jury or the judge are the persons who need to hear your testimony.  Try to look at them when answering the questions from the attor­neys.  It may help to look at the attorney asking the question to be sure you hear and understand the question, but then turn and look at the jury or judge to give your answer.  If you forget this when I question you, I may point unobtrusively towards the jury or judge to remind you to speak and look towards them.

xlvii) REMAIN DIGNIFIED AT ALL TIMES  

As a witness, it is your duty to remain dignified on the stand at all times.  While testifying, do not chew gum or have things in your hands which you may have brought with you, other than necessary records.  Wear appropriate, subdued clothing.  Never wisecrack in answer to a question or try to make fun of the cross‑examiner.  He has the right to ask questions and have them answered in a serious manner.  Do not answer a question with another question unless it is to ask the cross‑examiner to clarify what he is asking.  Answers such as, “How am I supposed to remember?” or, “What would you have done?”, are improper.

xlviii) YOU ARE PERFORMING AN IMPORTANT PUBLIC SERVICE

By testifying, you are performing an important service and fulfilling an important duty as a citizen.  The length of time other witnesses will take is largely beyond my control as it depends on the length of cross‑examination.  Some witnesses look on testi­fying as an unnecessary inconvenience.  This is wrong, because if we wish to have the benefits of a just legal system, when we are called as witnesses we must help the jury and judge to establish the facts.  Even if your knowledge seems small, it may form a crucial piece of the larger puzzle of the trial, that must be established for the case to be decided properly.  You should look on the duty to testify as an opportunity to play a significant part in an important function of our form of government, rather than an annoying inconvenience.

xlix) SAFE HARBORS TO REMEMBER:

There are certain answers or techniques that are helpful to keep in mind for those situations when you feel put on the spot by a question or subject.  Think of these as safe harbors that can help you weather the storm.  Most are common sense and logical.

a. “I don’t know.”

• b. “I don’t remember.”

• c. “I would like to see the document before answering.” (Might be an expert report, or a deposition passage being read to you, or a declaration you signed at some time in the past.)
• d. “That is outside my area of expertise.” (For experts.)

• e. “I was not asked to offer an opinion on that and am not prepared to do so without proper preparation and study.” (And, if pressed, “I don’t know exactly what I might need to read or do, or with who I might need to talk. That would require study and reflection.”) (For experts.)

• f. “It depends.”

• g. “In what context?”

• h. “In what time period?”

1. Rule 30(b)(6) Tips

2. Taking a Killer Deposition of a Corporation in Virginia

3. Rule 30(b)(6) specimen notice

4. Rule 30(b)(6) transmittal letter

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

DEPOSITION PRACTICE TIPS

by John Lowe

1) Use of 30(b)(6) depositions.

a) Rule 30(b)(6), Fed. R. Civ. P.

A party may in the party’s notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested.  In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to estify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.  A subpoena shall advise a non-party organization of its duty to make a designation.  The persons so designated shall testify as to matters known or reasonably available to the organization.  This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

b) Advantages

i) You don’t need to know who has the information before setting depositions.

ii) You should get the most knowledgeable witness on any given subject right away.

iii) The deposition testimony is testimony of the corporation and is binding on the corporation.  Admissions made are admissions of the corporation.

iv) Saves valuable interrogatories where the number of interrogatories is limited.

v) Designee has duty to seek out the information if the designee does not already have knowledge about the noticed subjects.

vi) Corporation cannot maintain willful ignorance by not inquiring about matters not actually known to the corporation, but has a duty to testify about matters known or reasonably available to the corporation.

c) Practice tips

i) Remember that you are questioning the corporation, not the designee as a person.  The person is a designee, not a deponent; the corporation is the deponent.

ii) Remember that you cannot ask questions outside of the categories designated in your notice.  Therefore, be as all-inclusive , broad, and exhaustive as you can be in your notice.

(1) Broad categories should be included to enable you to ask far-ranging questions and still be within the categories noticed.

(2) Specific categories, in great detail as to the information sought, will prevent a designee from coming to the deposition unprepared to answer questions about important issues by saying “Well, your broad category did not alert me that you wanted to ask about this particular subject, so I didn’t prepare.”

(3) If a designee appears unprepared to testify about a noticed category, continue the deposition to enable the designee to inform herself about the corporation’s knowledge about the category.  Then reconvene the deposition at a later date.  If the designee fails or refuses to inform hersel about the corporate knowledge, a motion to compel should be granted, perhaps with sanctions.

(4) Matters of privilege are still privileged.  Work product protection still applies, with a caution: a designee cannot obtain the corporate knowledge from a corporate attorney and thereby insulate the information from scrutiny as to source, etc.  For example, if the designee finds out about Fact A from corporate counsel, opposing counsel cannot insert the work product doctrine when the designee is asked what corporate employee told the information to corporate counsel.

d) The deposition notice

i) See attached specimen notice.

ii) The notice preamble.

iii) Definitions

iv) Instructions

(1) Occurrences

(2) Documents

v) Subjects of the deposition

vi) Documents

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Taking a Killer Deposition of a Corporation in Virginia

[A VTLA CLE presentation by John Lowe.]

•I.        Depositions of corporations under Federal Rule of Civil Procedure 30(b)(6) and Virginia Supreme Court Rule 4:5.

•II.      Benefits of deposition of a corporation compared to interrogatories to a corporation.

•A.     Though the witness has been thoroughly and skillfully prepared by a clever, skilful, knowledgeable, and even dishonest person, the exact questions cannot be predicted and, therefore, answers of the corporate designees (the witnesses) will be spontaneous.

•B.    The witnesses, not the company’s lawyer, will be the ones to choose the words to use in each answer.  The witnesses may not be as clever at hiding, evading, and coloring information requested as the company’s lawyers would be.

•C.     Follow up questions can be instantaneous.   (No need to send a follow up interrogatory and then wait another several weeks to receive the reply, only to find that yet further follow up is needed.)

•D.    Limitations of the knowledge of the inquiring lawyer can be overcome instantaneously by fishing and probing the witnesses within the broad categories of corporate knowledge identified in the deposition notice and letters from counsel.

•III.    Strategic timing of taking the deposition of the corporation

•A.     Keep in mind that a second 30b6 notice on the same subjects may not be possible (assuming the witnesses come prepared to answer the questions about corporate knowledge on the subjects noticed).

•B.    Early use of the 30b6 deposition can enable timely surgical discovery requests as follow up (interrogatories, requests for production of documents and things, requests for admissions, and individual depositions of witnesses found out about or identified in the 30b6 deposition).

•IV.   How to force the deponent to come prepared to answer your questions.

•A.     While multi-multi page lists of subjects dissected minutely and listed in infinite detail may be technically permitted in a 30b6 deposition, there are judges who, upon an objection that the long “laundry list ” of subjects was oppressive and burdensome, have struck the notice, thus requiring another, much reduced notice to be served.

•B.    The potential problem sought to be avoided by such “laundry lists” is the corporate designee who responds to critical questions — perhaps many of the more important questions — “I’m sorry, I didn’t anticipate your asking about that,” thus effectively eviscerating the deposition and, at a minimum, requiring another follow up deposition, if one can be obtained, or use of follow-up interrogatories to try to obtain the information sought.

•C.    The solution is quite simple and has been used successfully by the author many times.  The 30b6 deposition notice identifies the subject areas to be covered in the deposition in two ways.  First, it lists broad, all-encompassing language that avoids an objection that a particular question is not within the noticed subjects.  Then, it gives more specific descriptions of subtopics, but not in great detail.

•D.    Then comes the back breaker — the transmittal letter recites something along these lines:  “In order to be fair to the designees who will inform themselves about the corporate knowledge of each subject and each subtopic identified in the deposition notice transmitted by this letter, the following details, at least, will be sought.  This information is provided so that the defendant can arm its designees with a copy of this letter to enable the designees to ascertain the corporate knowledge about which they will be deposed.”  There follows a detailed laundry list of every detail you wish to learn, so there can be no “I didn’t anticipate your asking for that information.”

•E.     Specimens of an effective deposition notice and transmittal letter are attached.  The reader will quickly see the method in the madness.

•F.     This technique avoids objections to the notice.  And there can be no effective objection to the transmittal letter, as it is provided so the designees can better know what information they need to know as witnesses at the deposition.   (What a considerate inclusion by counsel noticing the deposition!)

•G.    A prudent step is to call opposing counsel about a week before and inquire if the designees have any questions about the details outlined in the transmittal letter and, “Oh, by the way, you did provide a copy of the letter to your designees didn’t you?”

•H.    This method has several benefits and earmarks for success.  First, it avoids the objection.  Second, it puts opposing counsel and its designees on notice of what details they need to come prepared to answer at the deposition.  Third, if a designee fails to prepare on the listed details, the Court will have little patience unless it concludes that the details don’t really have anything to do with the case.

•V.     Making a record of inadequate preparation in order to obtain court sanctions.

•A.     If opposing counsel produces corporate designee witnesses who are not prepared to testify as to the corporate knowledge on the details listed in your transmittal letter, make you objection on the deposition record and be sure that both your deposition notice and a copy of your transmittal letter are exhibits to the deposition in support of the objection.

•B.    Ask each designee the following questions and appropriate follow-up questions:

(1) When did you first learn you would be a designee witness of your corporation?

(2) What subjects in this notice [placing a copy in front of the designee] were you told that you would be testifying about as corporate designee?  [Get the designee to identify the numbers and any limitations, shared subjects with other designees, etc.]

(3) How did you find out and what materials or documents were you given to assist you to be a designee?  [Copy of notice?  Copy of transmittal letter?  Identity of other designees covering other subjects on the notice? Pleadings and other documents necessary to assist you in understanding the subjects you were to testify about? etc. etc.]

(4) What did you do to prepare to testify at this deposition about the corporate knowledge of your corporation on the subject for which you are designated?  [What records did you research and read?  With whom did you discuss each subject you were assigned?   Did  you make notes as you went along through your investigation and preparation?  Where are those notes now?  Did you check with workers in each of the corporation's offices, laboratories, plants, etc.?

C. Then make a motion to compel and redepose the corporation.

•VI.   Obtaining corporate admissions in the deposition.

•A.     A common problem in a 30b6 deposition is that questions by noticing counsel are phrased in such a way that the reader cannot determine if the witness was giving her personal answer or describing what the corporate knowledge or corporate position is.

•B.    The result is that a court may say that the answer is not an admission of the corporation because it is not clear on the record if the witness was answering as the corporation or for herself personally.

•C.    Some lawyers try to start the deposition by having opposing counsel agree on the record that every answer to questions is deemed to be a response of the corporation.  That can be dangerous or awkward for the deposition taker, as sometimes the taker wants to ask the designee about her personal knowledge in addition to the corporate knowledge (in other words, perhaps ask if she knows this because she knew it or because she investigated to prepare to be corporate designee, and found it out that way.  Besides, no lawyer in his right mind will agree to that stipulation as to his corporate designee's answers.

•D.    The only safe way to obtain clear corporate admissions during a 30b6 deposition is to carefully consider the question and answer that you think may be a significant admission -- have the court reporter read them back to you if necessary -- and make sure the question and context make it clear that the answer is the response of the corporation.  If you are not sure, then ask something like, "Now, let me be clear that the Johnson Hospital, Inc., knew that Dr. Jones had been disciplined in 2003."

•E.     Is it possible to obtain an admission more indirectly, perhaps without the witness realizing what she has given up, and without telling her?  Sure, but just be sure the language of the question and answer leaves no doubt -- or an acceptable level of doubt -- so that the answer is a corporate admission.

•VII. The issue of attorney-client privilege in the deposition of a corporation can cause problems.

•A.     Just because a fact was provided to a designee by a company attorney does not render the fact privileged under the attorney-client privilege.

•B.    Privileged information that was known by the corporate designee before she was designated or even that was learned by her after designation, as a part of her investigation, does not lose its privilege simply by her designation.

•C.    If the designee learns about a privileged fact from a source who is not within the privilege, that fact must be disclosed in the deposition.  This will be very rare, may be very difficult to prove source, and may be covered by some defense of wrongful disclosure by someone.  At minimum, this will be a can-of-worms to work through.  The key:  make a clear record of all the surrounding facts, the identity of the source, and context of the disclosure to the designee.

•VIII.           Authenticating documents using a deposition of a corporation.

•A.     A 30b6 deposition is an excellent way to authenticate documents for use at trial without the need for a sponsoring witness.

•B.    A 30b6 deposition is usable in trial by simply reading from it and, therefore, can provide the basis for authenticating a document that was authenticated in the deposition.

•IX.   Application of the time limitation to a deposition of a corporation.

•A.     Check the practice of the court where your case is filed.  Most courts say -- and the correct rule is -- that the seven hour limit applies per witness -- not per 30b6 deposition.  The company doesn't have to identify more than one designee, but if it does, then you get seven hours per witness.

•B.    In a similar vein, note that a 30b6 deposition only counts as one deposition, if the number of depositions has been limited, regardless of how many seven hour designee witnesses there are in the deposition.

•C.    Best rule for both of these issues is to check with your local rules and practices -- ask local counsel.  If still in doubt, ask the Court in some appropriate way for a ruling (e.g., at a status conference).

•X.     Tie-in to effective requests for production of documents.

•A.     If you want the designee of a party corporation (i.e., not just a nonparty corporation that is being deposed) to bring documents, things, et al to the deposition, you must add a request to produce to your notice.  The time for the deponent company to respond to such a request is 30 days federal (or 21 days Virginia state court) unless a shorter time is agreed upon or ordered by the Court.  This is just an application per Rule 34 (or Rule 4:9) or its state court counterpart in most jurisdiction.  Again, check the local practice or local rules of court.

•B.    Obviously what this means is that in timing your 30b6 deposition if you want documents and things brought by the company, set the deposition at least 30 days ahead of the notice.

•C.    In most jurisdiction you cannot substitute a subpoena to the party to bring the documents to the deposition, but must use Rule 34 or its state court counterpart.

•D.    Deposing a nonparty corporation is a different matter.  There you must subpoena the documents and things to be brought to the deposition (or produced in advance of it so you can better prepare for the deposition).

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

SPECIMEN RULE 30(b)(6) DEPOSITION NOTICE

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF VIRGINIA

ALBEMARLE DIVISION

IN RE WIDGET TECHNOLOGY PATENTS  -  CA 2002-103 (JL)

NOTICE OF DEPOSITION

PLEASE TAKE NOTICE that, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, and commencing at a time and place deemed mutually convenient, Defendant ABC Co. ("ABC") will take the deposition of Plaintiff XYZ, Inc. ("XYZ"), by oral examination using video tape, audio tape, and/or stenographic means.  The oral examination will begin at a time and place to be agreed upon among the parties and continue from day to day during the hours of 9 a.m. to 5 p.m., excluding Saturdays, Sundays, and holidays, until completed.  The deposition will be by oral examination before a Notary Public or other officer authorized by law to administer oaths.

XYZ is directed, pursuant to Rule 30(b)(6), to designate one or more officers, directors, managing agents, or other persons who consent and are knowledgeable to testify on its behalf with respect to each of the subject matters set forth in schedule C attached hereto.  It is understood that XYZ in response to this Notice may have to identify and produce several different designees to respond to the subject matters set forth in Schedule C.

The examination will continue until completed with such adjournments as to time and place as may be necessary.

You are invited to attend and examine the witness.

Date: __________, 1996 By ___________________________

John Q. Lawyer

Lawyer and Jones, P.C.

Attorneys for

ABC Company

SCHEDULE A

DEFINITIONS

A. The term "XYZ, Inc." or "XYZ" shall mean XYZ, Inc. and shall include any present  domestic and foreign divisions, subsidiaries, and affiliated companies; its predecessors and successors, whether wholly or partially owned; and all directors, officers, agents, employees, consultants, trustees, staff  members, representatives, and attorneys of any of the foregoing.

B. The term "ABC" shall mean ABC Company and all its agents, employees, and representatives.

C. "Describe" or "description," when used in conjunction with a document, includes the providing of all production numbers associated with the document and the title and full description of the document.

D. "Identify" or "identity," when used in conjunction with a person, includes the

providing of the last known full name, last known address, and last known  phone number of the person.

E. "Wildwidget" means any widget marketed by XYZ under the trademark "Wildwidget".

F. "Crazy Widget" means any widget marketed by ABC under the trademark "Crazy Widget."

SCHEDULE B

INSTRUCTIONS

Throughout this notice, references to instructions shall refer to the following lettered instructions.

A. Occurrences. As to each occurrence or conduct that XYZ alleges is an act by

ABC constituting or contributing to trademark infringement with XYZ's marks, provide the following information.

1. Identity of each agent or representative of ABC whom XYZ alleges engaged in the alleged occurrence or conduct.

2. The date, location, and circumstances of the alleged occurrence or conduct.

3. Each aspect of the alleged occurrences or conduct XYZ claims constituted               or contributed to trademark infringement, and each injury XYZ claims it                  suffered as a result of the occurrence or conduct.

4. The date and circumstances of XYZ's first awareness of the alleged

occurrence or conduct.  Identity of the person(s) who provided XYZ's first awareness of the occurrence or conduct and a summary of the information of which XYZ first became aware.

5. Identity of all witnesses to the alleged occurrence or conduct.

6. Descriptions of all countermeasures, responses, and investigations XYZ undertook as a result the alleged occurrence or conduct.  As to each such undertaking, provide the following information:

a. Identity of each agent or representative of XYZ who participated in the undertaking;

b. Date, location, and description of the undertaking;

c. Identity of all participants in the undertaking and describe their respective roles in the undertaking;

d. Effectiveness of the undertaking in countering the alleged occurrences or conduct of ABC;

e. All information XYZ learned in the investigation; and

f. Description of any documents involved in the undertaking or mentioning the occurrences, conduct of ABC, or undertaking of XYZ.

B. Documents.  As to each document that XYZ alleges was created, sent, or delivered by ABC as a part of ABC's trademark infringement, provide the following information:

1. Description of the document.

2. Identity of the persons who allegedly sent and received the document or copies of it.

3. Dates, locations, and circumstances of the alleged sending, delivering, or receiving of the document.

4. Date XYZ first became aware of the document and the identity of the person who provided that information to XYZ.

5. Description of all countermeasures, responses, and investigations XYZ

undertook as a result the alleged occurrence or conduct.  As to each such undertaking, provide the following information:

a. Identity of each agent or representative of XYZ who undertook the countermeasures, responses, and investigations;

b. Date(s), location(s), and description(s) of the undertaking(s);

c. Identity of all participants in the undertaking(s); and

d. Description of any document(s) involved in the undertaking(s).

C. Analyses. As to each analysis, assessment, or comparison, provide the following information:

1. Description of the analysis, assessment, or comparison, including but not limited to the method used and the results obtained;

2. Date, location, and circumstances of the analysis, assessment, or comparison;

3. Identity of all participants in the analysis, assessment, or comparison and their respective roles; and

4. Description of each document reporting, recording, or discussing the data, evaluation, or results of the analysis, assessment, or comparison.

SCHEDULE C

SUBJECTS OF THE DEPOSITION

As to each of the following subjects, provide full information, including but not limited to the information specifically requested.

1. The ABC sales brochure referenced at page 41 of XYZ's Answer to ABC Interrogatory No. 7 ("ABC Int. 7 Ans."), which ABC allegedly distributed to physicians and its alleged distribution.  [See Instructions A and B, above.]

2. Meetings and telephone calls that allegedly took place between ABC and (1) Dr. Eva Braun, (2) Dr. William Shakespeare, or (3) Dr. Susan B. Anthony during which ABC allegedly made false or misleading statements about Wildwidgets; and provide a description of the substance of each such statement.  See ABC Int. 7 Ans., p. 47‑48, 51, and 53‑54.  [See Instructions A and B, above.]

3. [[Add trademark topics here, if you want more for the specimen.]]

SCHEDULE D DOCUMENTS

ABC requests that XYZ produce for inspection and copying at the time and place of the deposition all documents that have not yet been produced or have been produced within the ten days preceding the first day of the deposition and that (1) are responsive to previously filed discovery requests, (2) have been referred to by XYZ in preparing for this deposition, or (3) have been the source of information that XYZ has found in response to this deposition notice.

CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that a true and complete copy of this NOTICE OF DEPOSITION was served, as indicated, on the ____ day of April, 20__, to the following attorneys:

Henry Clay

Clay and Mudd

13 Hades Court

Crowzay, JF 22909

_______________________

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

SPECIMEN TRANSMITTAL LETTER

Abraham Lincoln

Attorney at Law

87 Gettysburg Road

Jefferson City, VA 22903

Phone 434-555-1865

Fax 434-555-1868

February 12, 2009

Henry Clay, Esq.

Clay and Mudd

13 Hades Court

Crowzay, VA 22909

XYZ, Inc. v. ABC Co.

Notice of Deposition

Dear Henry:

Enclosed is our Notice of Deposition of XYZ, Inc. pursuant to Fed. R. Civ. P. 30(b)(6).  While the subjects are self-explanatory, let me point out some things for you to have your designee witnesses prepared to discuss in the deposition.

Subject 6 (E-mails).

Please be sure that your designees know how to conduct a global word search of all pertinent e-mail records and repositories for the  names, words, and terms listed and any others needed under your theory of the case to locate e-mails related to the alleged infringements.  You will recall in the X-Box case last year your designees didn’t understand how to conduct such a search properly and it resulted in a long delay and a lot of wasted time.

We will ask for the locations and identities of custodians of the e-mails in question, particularly the originals in native format.

Please be sure that the designees consider the lap top computers, Blackberry’s, and home computers of all officers and key people, and backup tapes of your company computer system.

Subject 7 (Document searches)

I will ask about any written or e-mail instructions given to the persons who conducted the searches for documents and things responsive to our production requests.  Such written instructions would be responsive to one or more of our document requests and if they exist, please supplement you responses and have your designee bring a copy of them to the deposition.

I will ask specifically about file cabinets and desks searched, so it will be important for your designee to inquire of the searchers about those places searched.

As to your overseas offices, I will want to inquire about the searches of those, as well — who did it, what they were told to look for, who supervised the searches there, and what was found there.  I will also ask about the language proficiency in English of those who searched for documents.

Sincerely,

Abraham Lincoln

Note that you may list as many details as you wish, to put the deponent corporation and its counsel on notice of questions you will expect the designees to be prepared on.  Those shown above are merely a few specimens

FEDERAL RULE OF EVIDENCE 803(6)

Records of regularly conducted activity. (Elements of proof)

• 1. A memorandum, report, record, or data compilation, in any form, . . .

• 2. . . . of acts, events, conditions, opinions, or diagnoses, . . .

• 3. . . . made at or near the time [of the acts, events, existence of the conditions, expressions of the opinions, or rendering of the diagnoses] . . .

• 4. . . . by, or from information transmitted by, a person with [first hand] knowledge [of the acts, events, conditions, opinions, or diagnoses], . . .

• 5. . . . if [said memorandum, etc. was] kept in the course of a regularly conducted business activity, . . .

• 6. . . . and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation. . . .

• 7. . . . all shown by the testimony of the custodian or other qualified witness. . . .

Simplistically, the witness must be able to respond positively to a series of simple questions that cover each above-listed element, one at a time, for the documents being authenticated (i.e., “Were these laboratory notes made at or near the time of the observations recorded in the notes?”).