Smoooooth Operator: Using Documents in a Deposition

This month marks my third year since law school graduation. In that time, I’ve gone from taking no depositions and reading no depositions to reading lots of excerpts from depositions (I was a judicial clerk), but taking none, to having taken what I think must be around 75-100 at this point, if not more. From what I’ve experienced, it seems like efficiently using documents in a deposition is a difficult skill to master. Most of us watch one or two depositions before we head out on our own, so it is no surprise that this can be a little difficult.  I’m not judging: I’ve struggled with it too. I still struggle with keeping up with what number exhibit I’m on, despite my best efforts.

This post is designed to cover the basics. For the most part, it’s not that hard once you get the hang of it. That being said, you don’t have to be a first-year attorney to get tripped up. There is a lot to remember and some attorneys don’t even take depositions until they’ve been practicing for five years or more. Some have been practicing for 20 years, but it just isn’t something they do that often. So, whether you’ve been practicing 1 day or 30 years, welcome! This is a reminder for all of us on the ins and outs of using documents. Here’s a roadmap for this post:

 

I. Using a Cheat Sheet

II. Quick and Dirty Steps to Introducing an Exhibit

III. Marking an Exhibit

IV. Authenticating an Exhibit

V.  Business Records Exception

IV. Other Hearsay Exceptions: This will follow in Part 2, because there are about a million of them.

I. USING A CHEAT SHEET

An important thing to remember is that there is no rule against having a cheat sheet. You probably won’t need one if you plan to introduce two documents, but I’ve been known to use them in depositions with 10-40+ documents. Here is an example:

Deposition of James Bond

May 2, 2011
2:00 pm
Documents Intended to be Introduced at Deposition
Ex. #, Title of Document, Date of Document (if any), Purpose of Introducing Document 
1                             Complaint                               11/29/11                                                                      Review allegations in Complaint, establish basis for allegations,  *NOTE: Par. 32-34 are especially important
2                             Resume                                     none                                                                              Review past/current employment; qualifications
3                             Equipment Service Log            10/20/10                                                             Establish last time machine was serviced; establish person(s) responsible for service, *NOTE: Clarify initials “ES” & who prepared document

And so forth.

There is no shame in using whatever you need to use to keep everything running smoothly and efficiently!

 

II. QUICK AND DIRTY STEPS TO INTRODUCING A DOCUMENT

 
These steps are broken down in detail below, but this is the concise list. Feel free to take it to a deposition if you need a reminder.
1. Mark the Exhibit
2. Authenticate the Exhibit
3. Lay the foundation for the business records exception to the hearsay rule
4. Lay the foundation for any other available hearsay exception (or non hearsay argument) for hearsay statements which are contained within the document itself (this will be covered more in part two).
5. Question the witness about the documents. Here are the reasons you might want to questions the witness:
    a. impeach their prior testimony
    b. figure out what terms in a document mean or what the document itself is used for
    c. figure out who wrote or prepared the document
    d. tell your client’s story and reinforce your case’s theme
    e. refresh a witness’s recollection

III. MARK IT

This is where prep work comes in handy. If you’ve already made your cheat sheet, this is will be a lot easier.
1. Before the deposition ever starts, figure out where in the deposition this is likely going to come in. For instance, if you think it could be first, write: “1” in pen or pencil that on the corner.
2. Make sure you have enough copies: 1) original for the court reporter; 2) one copy for each attorney/party present; 3) a copy for you; 4) if your client is present, a copy for them too.
3. Hand out copies to opposing counsel.
4. Say: “I will ask the Court Reporter to mark  as Exhibit 1 a Complaint stamped November 29, 2011, with the caption: Jellyfish Wells v. Acme Machine Company, Case No. CV-11-001.” If your evidence has a bates stamp number, cite that as well: i.e.,  “carrying Bates Stamp number 98.”
5. Let the Court Reporter physically mark the original exhibit with an exhibit sticker (be sure to carry some of these with you too, just in case they run out).
6. The Court Reporter will likely hand it to the witness (if they hand it to you, then hand it to the witness).
7. Say: “Are you looking at Exhibit 1?” The witness will answer: “Yes.”
You are now ready to move on to the first step in laying a foundation: authenticating!

IV. AUTHENTICATE IT

The rule requiring authentication in Arkansas is found at Arkansas Rules of Evidence 901-903. The requirements for originals v. duplicates are found at Rules 1002-1003; 1005-covers authentication requirements for public records; 1007 covers authentication of writings, recordings, or photographs of a party. The point of authenticating a document is to show that the document is what it purports to be, that it is an accurate copy of a document that it purports to be, and that it’s accuracy can be established by the person who is answering questions about it.
This is a sample transcript of authentication at a deposition, where the witness is also the signer of the document:
Q: Will you please identify Exhibit 1?
A: Exhibit 1 is a Complaint filed against Acme Corporation in Pulaski County last year.
Q: And if you will turn to the last page, can you identify that signature?
A: That’s my signature.
Q: Is this a true and correct copy of the Complaint you filed against Acme Corporation corp?
A: Yes, it is.
This is a sample transcript of authentication at a deposition, where the witness is not also the signer of the document:
Q: Will you please identify Exhibit 1?
A: Exhibit 1 is a Complaint filed against Acme Corporation in Pulaski County last year.
Q: And if you will turn to the last page, can you identify that signature?
A: That’s Jellyfish Wells’ signature.
Q: How do you know that’s Jellyfish Wells’ signature?
A: Because she is mother. I’ve seen her signature my whole life and I helped her write this Complaint.
Q: Is this a true and correct copy of the Complaint you helped your mother file against Acme Corporation corp?
A: Yes, it is.

V. IS THIS A BUSINESS RECORD THAT YOU WANT TO GET IN? IF SO, TAKE STEPS TO ESTABLISH A BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE.

803(6,7) cover the exceptions to the hearsay rule for business records. This section is treated separately because it is the most common exception invoked. This is a sample of a transcript where an attorney is able to lay the foundation for the business records exception:
Q: Can you identify Exhibit 3?
A: Yes, it appears to be an Acme machine service log for 2008-2009.
Q: And were you an employee of Acme during that time period?
A: Yes.
Q: What was the machine service log used for?
A: We used it to keep up with the dates that the machine was serviced.
Q: Are the entries made at or near the time the machine is serviced?
A: Yes.
Q: Are the entries made as part of the regular business of Acme?
A: Yes.
Q: Is Exhibit 3 kept in the ordinary course of Acme’s business?
A: Yes.
Q: How do you know what Exhibit 3 is?
A: My job is to review the service logs every month and update our reminder calendar. I also use the information to prepare end of the year reports.

Negative Evidence under 803(7)

Note that 803(7) also allows for negative evidence; the absence of a record, commonly referred to as “negative evidence,” is just as admissible as any regularly kept business or public record, provided the proper foundation is laid.
A proper foundation here does not require any magic language. But, it is important to get the witness to testify that a diligent search was conducted. You need to get:
1) How the search was made
2) Where the search was made
3) Any thing else about the document: type, how it is normally stored, how long it is normally stored, if it was ever seen, where else it could be if anywhere, etc.
4) Anything else that could establish the thoroughness of the search: how many people involved, what levels of corporation involved, all possibilities extinguished, etc.
Legal things you need to know:

A memorandum, report, record, or data compilation, in any form, if kept in the course of a regularly conducted business activity is not excluded by the hearsay rule, even if the declarant is available as a witness. Such records include information of acts, events, conditions, opinions, or diagnoses, made at or near the time that are transmitted by a person with knowledge. If the testimony of the custodian or other qualified witness shows that it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, the information is not excluded unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Ark. R. Evid. 803(6). Absence of a record of regularly conducted activity is also admissible. Ark. R. Evid. 803(7). This is all covered by the business records exception, and it is discussed in detail in Ch. 72.
Authentication of records under this rule can be by affidavit.

So that’s it for now! Stay tuned for Part 2, in which the  other exceptions to the hearsay rule are covered!

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