PROFESSOR GILDIN PUBLISHES AN UPDATED PRACTICAL GUIDE TO TAKING AND DEFENDING DEPOSITIONS
October 2024 — Professor Gary S. Gildin’s article, “An Updated Practical Guide to Taking and Defending Depositions,” has been published in Volume 129, Issue 1 of the Dickinson Law Review. Professor Gildin explained the motivation for the article in the Introduction:
40 years ago, to commemorate the 150th anniversary of the founding of The Dickinson School of Law, the faculty submitted articles for a special Sesquicentennial Issue of the Dickinson Law Review. As an homage to the law school’s longstanding ethos that theory and practical skills are indispensable and complementary pillars of great lawyering, I wrote “A Practical Guide to Taking and Defending Depositions.” Notwithstanding the fact that entire well-regarded books are dedicated to deposition practice, that article remains one of the most downloaded works in the Penn State Dickinson Law IDEAS database. Since 2012, it has been accessed over 6,400 times through the readership.works.bepress.com database by private law firms, as well as commercial and governmental entities.
While flattering, the fact that a significant number of lawyers continue to consult this 1984 article is disconcerting. In the intervening four decades, rules of procedure governing depositions, and my thinking on the substance and tactics of depositions, have significantly evolved. At the same time, the need for competent instruction on depositions has become more acute, due to the vanishing of civil trials. Without having tried a case to verdict, it is exceedingly difficult to understand the techniques one must execute to hone the deposition. transcript as an effective weapon on cross-examination. Therefore, to mark the occasion of the 190th anniversary of the founding of what is now Penn State Dickinson Law, I offer this updated practical guide to taking and defending depositions. The goal of this piece remains the same as its predecessor: to capture the fundamentals of deposition practice in a single, relatively concise, open-source article usable by rookie litigators, as well as veteran trial attorneys.
The Abstract of the article summarizes its content:
The deposition offers a singular opportunity to handcuff the deponent to an irreversible script. Consequently, both the attorney taking the deposition and defending counsel must prepare for and conduct the deposition with equal if not greater care than the trial.
Traditionally, lawyers have used the deposition to discover facts relating to the legal elements and the credibility, perception, and recollection of the witness. However, recent breakthroughs in neuroscience as to how the brain makes decisions have revealed a different genre of evidence that will drive how the trier of fact will decide the case. Today an attorney taking a deposition also must probe the elements of story — character traits, motives and the stakes.
Proper handling of stipulations and thorough execution of an introductory litany at the outset of the deposition are prerequisites to ensuring that the witness cannot credibly offer different or additional facts at trial without being impeached. To continue to shackle the witness to the transcript, over the course of the deposition the examiner constantly must be mindful which of three objectives they are pursuing — constructing nablas, admissions testing, or surfing for nablas — and adopt the questioning technique necessary to achieve that end. When examining about a document, the attorney taking the deposition must employ additional techniques to ensure the answers will bind the witness at trial. Finally, deposing counsel must understand how to respond to and manage objections — both legitimate and spurious — as well as deal with any attempts to coach the deponent or otherwise obstruct the deposition. Both during and after the deposition, the defending attorney must take permissible steps to ensure the accuracy of the testimony, minimize its damage, and preserve evidentiary privileges. However, defending counsel’s most critical role–while at all times acting within the bounds of rules of professional conduct–is to fully prepare the witness for the deposition. The goal must be to make the deponent sufficiently comfortable with what will transpire so they can accurately convey what they do know, comfortably concede what they do not know, and avoid being led into admitting facts that are not true.
Prof. Gildin’s article may be downloaded from the Law Review’s online repository at https://ideas.dickinsonlaw.psu.edu/dlr/vol129/iss1/2/.
Professor Gary S. Gildin teaches Civil Liberties Litigation as well as Protection of Individual Rights Under State Constitutions. He is the author of Religious Freedom Under Article I Sections 3 and 4 of the Pennsylvania Constitution, published in THE PENNSYLVANIA CONSTITUTION: A TREATISE ON INDIVIDUAL RIGHTS AND LIBERTIES, Ken Gormley and Joy G. McNally eds. (Second Edition 2020) and contributed to the Brief of Amici Curiae Law Professors David S. Cohen, Gary S. Gildin, Seth F. Kreimer, Jules Lobel, Robert Reinstein in William Penn School District et al. v. Pennsylvania Department of Education et al., No. 587 M.D. 2014 (Commonwealth Court of Pennsylvania), in which Judge Renee Cohn Jubelirer ruled that the system of funding public education violated the fundamental right to meaningful education under Pennsylvania Constitution.