Don’t Coach Your Witness During Depositions-Here’s How to Avoid It

Sanctions may be waiting for you if your zealous defense of a deposition of your client or witness rises to the level of witness coaching. There is nothing wrong with a proper objection (I encourage it, when called for, instead of playing iPhone games) but you definitely don’t want to make objections solely to tip off your client/witness to play along. How can you avoid this?

  1. Don’t just say “Object to form” or “objection, form.” State the underlying reason for your form objection. If it’s hearsay, say, “Object to the form, hearsay.” Same with foundation, etc. Continuously objecting with a pattern form objection could be interpreted as merely obstructing the questioner and tipping your witness to answer in a way differently than what she would have done without your interruption.
  2. Don’t object to every other question with “vague” or “ambiguous.” These are specific terms with specific meanings that shouldn’t just be a clue for your witness to ask for clarification or try to narrow down his or her answer to extinction.
  3. Don’t overly prepare your witness. I have several articles on this blog about preparing your witness about what to expect, what to wear, when to shut up, etc. but there is a difference between preparing a witness and practically writing a script that a witness memorizes and can’t deviate from.
  4. Don’t object to every single thing that you can possibly object to. Weigh the importance of the objection. If it matters, go for it. If you are really in doubt, go for it. But if the objection is to something harmless, let it go. Your transcript shouldn’t be littered with your name on every other line.

If we all follow these rules, we ultimately all win. Shorter depos mean cheaper depos. Cooperative depositions lead to future cooperative depositions and misconduct sanctions are avoided.

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.


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!



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


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!


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.


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!

Pregaming Your Client’s Depo, Parts 1 & 2: Interview with my mom and free templates

Prepping your client for their deposition=probably the most important part.

The most discouraging thing about it  is when you spend hours or even a whole day preparing your client for their deposition, cover everything important, and then they do all of the things they aren’t supposed to anyway! Gah!!! I think as attorneys, we forget how nervous people get in that kind of situation, because we have become immune to it. I mean, seriously, what is the big deal? Why is it so hard to follow simple instructions, for crying out loud? In order to find out, I interviewed my mom.

My mom was in a bad car wreck when I was a 2L. She was represented by a family friend, who is a very competent plaintiff’s attorney. Her deposition was taken by State Farm ahead of trial. Here is our facebook chat about what made her nervous and what would have helped:

MeWere you nervous before your deposition?
Mom: Yes, very.
Me: What made you nervous?
Mom: Never having done it, so the unknown; worried about not giving the correct answer or even if it was true, I was worried my words would get twisted.
And the thought of the court reporter made me nervous for some reason
And just the stiffness/officiousness.
Me: The court reporter is usually the nicest person in the room. Why did that make you nervous?
Mom: I’m not sure , she was very pleasant, but I think trying to remember to speak my answers and not just nod or use my hands.
Also, I think trying to answer truthfully with out giving him too much Information.
Me: So, there were just a lot of things to remember at once?
Mom: Yes, and I was in a great deal if pain with it.
It is a very unfamiliar situation and kind of like when the police want to ask you questions.
Even if you are innocent you are still a nervous wreck.
Me. I know [your attorney] showed you a video and talked to you about it ahead of time. He probably told you all the same things I tell my clients.  What else could have been done to make you feel better about it?
Mom: Dress nicely but be comfortable, having a drink or light snack ahead of time.
Giving everyone a minute to acclimate , get comfortable.
Being able to have your dad there would have helped. Not sure if he could have been there?
Me: No, he couldn’t be in there with you. 
Mom: Ok, it would be a help if you could have someone like that, but since you can’t I guess that won’t help. And not having the other lawyer act like you are lying with looks or just the way he reacts. I kept feeling like he thought I was lying when I wasn’t. It is just such am intense situation , very nerve racking.

Me: So the other attorney was trying to put you on the defensive by acting like he didn’t believe you? 

Mom: I felt like he was, especially when he asked questions I couldn’t remember. I don’t know answers a dozen times starts to make you look like you’re lying, as he jots constantly and” uh-huhing” and “I seeing.” I think you can explain it all you want, but until someone does it, they will be nervous.

That’s most of our conversation. I did not include my mom’s other suggestions which rapidly devolved into the ridiculous, including:  being allowed to crochet while answering, having a “bowl of pretzels and a Coke handy,” and requiring opposing counsel to wear an Andy Griffith mask.

But, there were some pretty fair criticisms of why people are wary of attorneys. Plus, it is strange to do something you do every day–talk–but not be allowed to do it in a normal way. I think Mom is right: you have to do it to really get it.

Which brings me to my pregame process, in all its detailed glory. 

I like to send a pre-deposition letter, after I have scheduled a pre-deposition meeting. The letter includes a guideline pamphlet. This gives my client a chance to read about a deposition ahead of time, digest the intellectual part of it, and think about questions. Then, I do practice deposition questions with another attorney at my firm defending the pretend depo.

Part 1: The Letter  Ahead of the Meeting

Here is my enclosure letter, sent after our meeting is planned. Feel free to copy it and make it yours for free; however, I would not turn down something to barter in exchange, say…decent wine or a box of truffles. It’s only fair.

Dear Client,

As you know, your deposition is coming up soon. [It will likely be scheduled during the week of__] or [It has been scheduled for ____________, at _____________ for____________(time)].

[We have already planned to meet together on _____(date), at _____(location), for ___(time),  in order to go over the process of your deposition. You should plan to be there for about [2] hours] or [Please call or email me as soon as you can to set up a meeting].

During our meeting, I’m likely going to practice some questions and answers with you. I may even ask another attorney from my firm to practice with you too. The purpose of practicing questions is not to get coached on what to say (I always want you to tell the truth to your best ability); the point of practicing is to help you feel confident about how you are telling it.

Before our meeting, I would like for you to read the enclosed deposition guideline. While you read it, please make notes of any questions that you have for me. I’ll answer them at our meeting.

Your deposition is a very important part of this case and I appreciate you taking the time to do the best job that you can on it.

Best regards,

Awesomesauce Attorney

Part 2: Deposition Guidelines (sent with letter)

Please feel free to take these guidelines and make them yours. This is also free, but I’ll let your conscience be your guide about whether or not you should send the truffles I requested. If you have suggestions to make it better or you already use one of your own, please send it and I’ll publish them!

Deposition Guidelines

What is a deposition?

A deposition is a question and answer session, usually between the opposing party’s attorney and a witness, expert, or adverse party. The attorney asking the questions is called the “examining attorney.” The “deponent” is the person whose deposition is being taken. If you are reading this, that probably means you are the deponent!

Every word spoken at the deposition is typed up by a court reporter, who will give all of the parties a book of the questions and answers later. I will show you an example of this book when we meet together. Many times, depositions are also videotaped.

Before you begin answering questions, the court reporter will have you swear to be truthful, just like you would do in court. The testimony you give is “sworn testimony,” meaning that if you deliberately lie during your deposition, you could be in legal trouble later. It also means that your testimony is public record (unless I tell you it isn’t) and that it can be used in court, either for or against you.

Why is my deposition so important? 

Depositions are one of the main ways attorneys learn about the facts of the case.  No matter how much research we do, there are always going to be things we don’t know until we ask the people involved. For this reason, the goal of the examining attorney is to get the deponent to talk as much as possible. At our meeting, we are going to discuss preventing that.

Deposition testimony can be used against the deponent in court. Other things people say can be used against them too, but deposition testimony is more compelling than using words said in an email or conversation, because the deponent swore to tell the truth. If a judge or jury finds out that the deponent lied during a sworn statement, they have no reason to think that he will take his oath to tell the truth in court seriously.

Depositions are a way of telling whether or not the deponent will make a good witness in court. Whether, and how, a case settles often depends on whether a deponent would make a good witness at trial. Even if someone tells the truth, if they do not make a good impression, the opposing attorney will use that to his/her advantage to push for a bad settlement.

What should I wear? 

For the reasons I’ve already mentioned, it’s important that your appearance creates a good impression. For that reason, please be as personally clean and as respectably dressed as possible.

I have offered some very specific suggestions below. Please don’t be offended by this if you do not need my help; however, I have had many clients worry a lot about this issue or misunderstand me, so I have started offering detailed instructions to help those clients be more comfortable.


I understand that not everyone can afford to get an expensive suit or their nails professionally done. That is not required, even if you can afford it. All that I require is that you to make the best effort that you can. Incidentally, if your case goes to trial, these are the same guidelines.

Creating a good impression does not have to cost a lot of money. For instance: holes in clothing can, and should, be mended; shoes can be cleaned and polished at home; nails can be trimmed and cleaned at home; hair can be washed and neatly styled without paying anyone. These simple steps will go a long way.


  • Hair should be washed and trimmed, or pulled back neatly if long enough. This is not the time to try out a mohawk or shaving your head for the first time.
  • Hands and nails should be cleaned. Nails should be trimmed.
  • Facial hair should be appropriately groomed.
  • Clothing should be clean, smell fresh, be pressed, and comfortable. If you have never worn a three-piece suit in your life, this is probably not the time to try it out. The best description of what to wear is “business casual.”
  • Shoes should be cleaned & polished (if applicable) and comfortable. Your deposition could take a long time and wearing tight shoes would make it a very painful experience.
  • Piercings & tattoos: if you have a large number of piercings and some of them can be removed without causing harm or leaving a gaping hole, please do the best you can. Tattoos should be covered by clothing, if possible.


  • Hair should be cleaned and neatly styled.
  • Hands and nails should be cleaned. If you wear nail polish, make sure it isn’t chipped. If you wear your nails short, make sure they are trimmed and clean. Longer nails should look nice.
  • If you wear make up, please be conservative.
  • Shoes should be cleaned & polished (if applicable) and comfortable. Your deposition could take a long time and wearing tight shoes would make it a very painful experience.
  • Clothing should be clean, smell fresh, be pressed, and comfortable. If you have never worn Spanx in your life, this is probably not the time to try it out. The best description of what to wear is “business casual.”
  • Piercings & tattoos: if you have a large number of piercings and some of them can be removed without causing harm or leaving a gaping hole, please do the best you can. Tattoos should be covered by clothing, if possible.


You should bring a sweater or light jacket. We never know if the room will be freezing or really hot, so plan accordingly.

Please also be sure to eat something before your deposition. If you have low blood sugar issues, please bring a snack with you.

If you take medications, be sure to bring them with you if you need them.

Steps to answering a deposition question.

1. Tell the truth. 

Please do not lie, even if you think it will help your case or someone else’s. It never turns out well, so just don’t do it. But, that does not mean that you have to volunteer information if it was not asked. You have every right to make the attorney ask you the right questions. It is not your job to sort everything out for them.

2. Listen carefully to the question.

3. Pause. Why?

a. Makes sure the attorney is finished asking the question.

b. Gives me time to make an objection if one is needed. If I object to the form of the question, wait until I finish the objection, and then indicate you that you may answer. If I object based on a privilege, I will instruct you not to answer the question.

c. Allows you to think about the question that was actually asked.

d. Makes it easier for the court reporter to create a clean record.

4. Answer the question asked. See the next section for acceptable answers.

5. Stop Talking!!! Don’t offer explanations or volunteer information beyond the question actually asked. If the attorney wants an explanation, she will ask for it.

Acceptable answers to most questions:

1. Yes-if the answer is definitely yes.

2. No-if the answer is definitely no.

3. I don’t know (if you are not sure, can’t remember, never knew and/or don’t know now).  Never guess if you don’t know. You aren’t being deposed for information you can guess. You are being deposed for what you know.

5. I don’t understand. If you didn’t hear it, ask the attorney to repeat it. If you didn’t understand a word they used, or the way the question was phrased, ask them to rephrase the question or tell them which word you don’t know. Attorneys are people and sometimes we ask bad questions. Everyone will appreciate you pointing it out, because that will help create a cleaner record.

6. May I take a break? If you need one, ask for one. This isn’t an endurance test, if you need a break take one, but if a question is unanswered, you will need to answer it before the break begins.

7. Correct/Clarify earlier mistakes when you realize you made one. It’s ok if you messed up an earlier answer. As soon as you realize you misspoke, let the attorney know that you need to correct your answer.

Why I will be quiet for most of you deposition. 

A real deposition is not like the ones you see on TV. Many deponents are worried that their attorneys are so quiet during their deposition.

I am only allowed, by law, to make limited types of objections. Objecting when I am not supposed to can get us both into trouble. Additionally, it ends up taking much longer and does not help the case.

The examining attorney is allowed a lot of leeway about what they ask. You may not see the relevance of their question to the case–I may not see it either–but that does not mean that you don’t have to answer it.

Please rest assured that even if I am quiet, I am listening, and if I am allowed to make a necessary objection, I will.

Tricks I use on other people that I do not want you to fall for. 

1. I am really nice to deponents to get them to warm up to me and talk a lot.

It does not matter how nice the attorney is–they aren’t your friend and you aren’t having a nice chat over coffee. They are interrogating you in order to find out things that could rip apart your case or defense.

2. I get people to “guesstimate.

This is an easy way attack someone’s credibility later. If you guess something was 20 feet away because the attorney tells you it’s ok to just guess and the actual distance turns out to be 2 miles, you are not going to look like someone who knows what is going on. If you don’t know, say you don’t know.

3. I play dumb to make deponents think I don’t know the truth.

I often act like I don’t know something, just to see if someone will lie. For instance, I often ask someone if they have ever been sued, or gotten in criminal trouble, and assure them that I don’t mean any offense, but I have to ask everyone. Often, I have that person’s entire rap sheet sitting right in front of me. People will often lie, thinking that I do not know the truth and that I will believe their answers.

4. I will bait an argumentative person.

If you start arguing with the attorney, they can get testimony out of you that reads terribly on a transcript. Don’t argue with the examining attorney: that’s my job!

Additionally, argumentative witnesses are very off-putting to jurors and judges. The same is true of sarcasm. It just does not read well on a transcript, so don’t use it.

5. I ask people if I can see something they have with them. Don’t agree to give up something if you are asked for it, like a license, or wallet, etc., unless I tell you to go ahead. Tell the examining attorney to ask me for it later. Exception: You can refer to notes if you need to during your deposition, but please know that they will be shown to everyone present and will be made an exhibit to your deposition. Please do not bring anything to your deposition that we have not explicitly talked about beforehand.

Stay Tuned for Part 3: The Meeting Agenda and Video Examples

Every Day Can’t Be the Best Day

Today is not going to be the best day. 

In the next 12 days, beginning today, I will spend a full 8 of them in depositions. That’s 25 depositions total, maybe more, depending on whether a witnesses changes her mind about refusing to attend. That’s a post for another day.

Let’s review my weekend: I worked late Friday night, into Saturday morning, and then accidentally slept until 1. Baby shower Saturday evening (which was really fun!) meant working really early Sunday morning. Check. Got up at 5 and got a lot of work time in.

But, I also planned a cookout at my house for Sunday afternoon, because I don’t feel like I’ve had a weekend unless I’ve overextended myself.

As I was doing some yard work for the cookout (read: remodeling my entire landscaping, because anything worth doing is worth doing right!), I pulled a muscle in my “gro-in” as we say in the South, and the symptoms kept getting worse, until it became a possible hernia, according to the WebMD. I didn’t even know that women could get hernias until I read that article, so at least that part was informative.

After texting with 4-5 doctor friends (apparently, I need a quorum to make health decisions), I went to the emergency room to get checked out. A full two minutes with the doctor confirmed no hernia, but that didn’t seem to make the pain feel any better, resulting in an entire night of tossing and turning, even with the muscle relaxer. And now I have 5-6 depos today, starting in a couple of hours.

I wonder how I’m going to sit still with the shooting pains running up and down my leg? Or maybe I won’t. Maybe I will just randomly keep jumping in my chair and freak everyone out.

Sigh. It makes me think of these Atmosphere lyrics:

“Every day can’t be the best day

Do what you can right now, don’t hesitate

That’s why we try to make love and get paid

Take the bad with the good, now let’s play”

Because that’s what lawyers do. We try to make the best of bad days. Usually, it’s our client’s bad day. But, sometimes it’s our bad day.

Here’s how I’m making the best of it:

1. I made French toast with leftover hotdog buns:

hot dog bun french toast

No. I didn’t eat all of it. I did eat most of it. It’s important to eat a lot before long depos because it sucks to be the person with the growling stomach.

2. Red Bull. I don’t dare try to take another muscle relaxer, so I’m going to go the opposite direction.

3. Review the file and thank my lucky stars that I prepped this round of depos on a slow day about a month ago. Working ahead definitely has its advantages. The only left to do is copy some exhibits and get them organized. In order to reduce the weight of my briefcase, I’ll be doing the entire deposition off of my ipad in Evernote and working with DocScanner, which will give me fodder for another post.

4. Remember that this too shall pass.

How do you handle the days that aren’t the best days? I would love to know. 

Forever Evernote, iPad Edition, Part 2: Skitch


Skitch for Evernote

Today we are taking an in depth look at Skitch, which is an app that I use with Evernote. It’s made by the same people who make Evernote, so the integration is pretty much flawless. Skitch goes everywhere that Evernote goes, so let’s take a look!

This is going to be a photo-intensive post, so you should know that clicking on a photo will bring up a larger version of that photo.

Skitching with iPad

One of the biggest advantages of Evernote is the ability to use it on my iPad, and Skitch is a big part of helping me take photographic notes. It is downloadable at the app store, for free.

OK, I Got it, Now What? 

First, go to the skitch app and open it up:


Select the type of file you want from the main menu: 

This is the main screen. Just like Evernote, if you want to add a new skitch item, you click the plus button. If you want to discard an item, you click the little trashcan and an image like the one directly below will pop up and you hit the little “x” to delete it.


The photo directly below this is the main menu. You can:  1. take a photo with your iPad; 2. choose a picture from your iPad or photo stream; 3. draw something on a map (the map is in Skitch); 4. start with a blank canvas; or 5. take a screen grab from a website. Let’s take each of them in turn.



This option is pretty self explanatory. Once you hit this button, it opens up into a camera app and you just snap a photo. The remainder of this type of file is identical to the “choose a photo” option, so scroll on down for more on that.


For choose a photo, you are going to get an option about where to get the photo:


You have to select the photo either from the camera roll (the photos that you have actually taken with your iPad) or your photo stream (all of your photos across all devices that support iPhoto or compatible apps like Social Folders). I selected Photo Stream:


Now, you just select a picture and get to work!

You can make a blurry area for sensitive information that you don’t want someone else to see (or a stray ink mark on your wrist):


You can draw arrows on your photos and choose the color of elements you want to add:


You can crop photos:



You can add highlighting and put it all together:



This is a hand little feature that lets you do the same features as the photos, but on an in-app map:



Another great feature if you are only looking for drawing tools:



I have used this handy tool during depositions when I have been doing internet research on something that has been mentioned. I can capture a screen grab of the website and highlight anything that’s relevant. Here is an example from a newspaper’s website:


Now let’s see how it works in Evernote: 

Go open up Evernote from your main screen:


Select the “Skitch” notebook. You will get this notebook when you open a skitch account and link it to your Evernote account.


THis is the view of the skitch notebook. I never re-titled the pictures I took for this post, so they all have the same name. But, ideally, you would give your photos unique names to use that search feature later.


This is a note opened up:


Because this is Evernote, you can share anything you create in Skitch with someone else, by either creating a public link to email or post, etc., or by emailing someone individually who has an Evernote account and letting them share the note in their own notebook.


So that’s it! Now you are a Skitch Pro and hopefully it will help you get more out of Evernote. 

Stay tuned for some upcoming posts talking about the apps I use with Evernote to get the most out of it.

How to Defend a Deposition – Don’t Just Show Up and Play Lawyer

Philly Law Blog has a great, in depth post on depositions. This is a great companion to the “Quick and Dirty” piece I did earlier this month, as it actually takes the time to explain the entire process. Worth the read!

Philly Law Blog

[Editor’s Note: If you’re looking for my guide on defending depositions, it’s here.]

Yesterday Chris Bradley wrote a piece about how to defend a deposition. Advice? Just show up. Maybe wear a suit. And if you feel like it make an objection, but do it in a really lawyerly way. The other side will respect the fact that you’re there and put on a suit, and won’t take advantage of your witness.

Easy, right?

Errr… not so fast…

When it comes to clients, it takes more than just showing up and wearing a suit. What bothered me about this particular article is Chris decided to fake it with real clients. See, Sybil Dunlop wrote a piece last week about her “motion in lemonade“, which was funny. Why was it funny? Because it’s okay to mess up or puff yourself up before a lawyer who is supervising…

View original post 2,262 more words

Forever Evernote, iPad Edition, Part 1

Evernote: You Can Have it Everywhere

Today, I thought I would share a little bit about how I keep all of my information together across various platforms and locations. My main system is Evernote. Evernote is my work BAF (best app forever).

Where I have Evernote:

-Work PC

-Home PC




-two turntables and a microphone

Why it is Better Than One Note

I actually love OneNote. I wish the people at Microsoft would quit being such big babies and put out a Mac edition, but they haven’t.  I do have Outline for Mac, which I will probably cover later, but, for now at least, Outline does not have two-way usage. I can only use it to read OneNote, which doesn’t help if you are a super mobile, jet-setting* attorney like me and you find yourself in need of actually inputting information somewhere away from a PC.

Evernoting with iPad

One of the biggest advantages of Evernote is the ability to use it on my iPad. I can do research at the doctor’s office, completely handle multiple days worth of depositions, and figure out what’s for dinner all from my iPad. So let’s dive in, shall we?

How Do I Get Evernote on My iPad? 

You go to the app store and download it.

How much does it cost?

A basic Evernote account is free (as is the app).

I started with a free account to try it out, which is what I recommend doing. Because I use Evernote so much, I purchased a premium Evernote account. It’s less than $50 per year and pretty much essential if you are really going to use Evernote heavily for work. Premium allows you to work offline, search all of your attachments, etc., so it’s pretty key.

How do I download the Evernote App? 

Why do you have an iPad if you don’t know how to download an app? You should find someone else and just give them your iPad because you are wasting yours and the rest of this is going to be waaay too complicated for you.

OK, I Got it, Now What? 


The first thing you want to do is create a notebook. This is where you are going to put everything.

1. Creating a Notebook: the upper left-hand button with the plus symbol lets you add a notebook.

2. Deleting a Notebook: the bottom right hand trashcan button lets you delete a notebook.

3. Accessing Notebooks: all of your notebooks are pictures on the main page. Here is a picture of my current notebooks:



Stacks are a group of notebooks that are all related. In the picture above, they are the notebooks with the white bands around them.


The way you organize your notebooks is up to you. Here is my current system:

1. Every case I’m working on has its own notebook (at least one).

2. Large, active cases have more than one notebook, which are piled into a stack. I’m currently only working on one big case in Evernote (my other big cases are with attorneys who use dropbox, One Note, or just my work server, so I store the information for those cases there).


Here is a picture of my Ellison v. Lesher stack opened up to see all of the notebooks:


So you can see that I have a separate notebook for 4 depositions and also a general case notebook. I use the general case notebook to stick loose notes into until I can organize them into a notebook.

Within a deposition notebook, I have individual notes:

notes in stack


The first note is a voice-recorded memo to myself that I created directly in Evernote.

The next four notes are picture of exhibits that I took with the camera on my iPad at the deposition. Taking pictures meant that I didn’t have to keep up with the actual exhibits.

The last note is just a text note that I copied and pasted from a Word document. These were the questions that I actually ended up asking at the deposition.


Searching is the key to the Evernote system. You can search within a notebook or within all notebooks. Here is the result of a search for “depo”  within one notebook:

evernote search function

You can see that it searches the title and file itself. I try to be smart about how I title my notes. The title needs to make sense when I’m searching for an exhibit later.

Evernote Security

One of the biggest concerns for attorneys is the security of our documents. We often have sensitive client information stored in our massive files and it would be terrible if our clients couldn’t trust us with their documents.

Evernote has one-way encryption, which means that user passwords are all scrambled to bits in their server, making them pretty much useless to anyone who is able to access them.  Additionally, you can encrypt the data in a note yourself, but remember that Evernote can not retrieve this data for you if you lose it on your end.

Evernote provided the following steps to ensure that your data in Evernote and other sites is secure:

  • Avoid using simple passwords based on words found in a dictionary.
  • Never use the same password on multiple sites or services.
  • Never click on ‘reset password’ requests in emails – instead go directly to the service by typing the address into a browser address bar or using a bookmark.

Finally, make sure your iPad itself is secure. I have mine set to lock if I’m away from it for a minute and it requires a four digit pin to unlock. Additionally, I have the settings to remotely erase the data on my iPad enabled, for worst case-scenario situations.

Stay tuned for some upcoming posts talking about the apps I use with Evernote to get the most out of it.

*Can I call attending depositions at the Municipal League jet-setting? Let’s go with yes.


The Quick and Dirty on Objections in Depositions



The Basics of Deposition Objections

I’ve spent way more time than I should have reading nitty gritty rules about depositions and what state v. federal stipulations apply (hint: I still can’t tell for sure, so I think that is maybe a pretend area of law an area subject to interpretation)  but here is what you really want to know going into a deposition: “When do I object?” and “Hey, can he object to that?”  And no, it isn’t just the younger attorneys who mess this up. It’s easy to forget which objections to make during a deposition and which to ignore, which is why I have this handy cheat sheet for you here! In Arkansas, all objections are typically reserved except to the form of the question and privilege. If you have questions about that (especially if you are dealing with a new opposing counsel or opposing counsel is from out-of-state), you should clarify that everyone else understands that to be the case.

To Object or Not Object?

Sitting in a conference room full of lawyers and videographers and witnesses can be intimidating, especially when it’s time to yell out an objection. Plus, there usually isn’t a lot of time to think about it. Usually they say it’s better to be thought a fool than to open your mouth and remove all doubt, but this is a situation where you want to head the other direction. It’s better to make a few bad calls on a deposition transcript now then to find out that you waived an important objection later. I recently made a bad objection (I said “compound” when I meant “ambiguous”) and the opposing counsel gave me a rough time for it. But, that shouldn’t stop you because 1) most of the time no one will even say anything and 2) that’s really the worst that can happen.

So…go forth and object!

The Quick & Dirty of Deposition Objections*

Two types of objectionsprivilege and objection to the form of the question.

1. Asserting a privilege: if your client is being asked privileged information, speak up now! Do not let them answer and potentially waive privileged information. This one is easy enough, but it’s why it is really important to pay attention and not get caught playing Angry Birds.

2. Objection to the Form of the Question: there are lots of different types of forms that could be objectionable. These are the ones you want to listen for:

Vague-for some reason, the question isn’t clear enough. I think this is especially something to watch for when you are dealing with periods of time. “Did you own a gun?” Well…when? Before the robbery was committed or after? That could be important. If you point out the vagueness that you are objecting to, counsel will usually rephrase the question.

Unintelligible-soothenyouwerealllikeerrrhhhhj…Right? If you are thinking, “What did they just say?” this is probably the right one, unless your vocab is just really bad. This is important with witnesses too…make sure you understood what they said before you give that question a little tic in the box.

Ambiguous-the question could mean more than one thing. See the following excerpt from The Office (Season 4, Ep. 8) and see if you can spot where the ambiguity is:

Lester:    How long have you known Ms. Levinson?
Michael:  Six years and two months.
Lester:     And you were directly under her the entire time?
Michael:  That’s what she said.
Lester:     Excuse me?
Michael:  That’s what she said.
Lester:     Ms. Levinson told you she was your direct superior?
Michael:  Uh, wh-why would she say that?
Jan:         Can we just move on to another question?
Diane:     No wait, I don’t understand. Who’s on record on saying this?
Lester:    With all due respect, I’m in the middle of a line of questioning. Now Mr. Scott, what did you say Ms. Levinson said? Regarding your employment status with respect to her corporate position.
Michael:  Come again? That’s what she said? I don’t know what you’re talking about.

Compound-there are really two questions being asked: “So, you went to the store that night and ran home?” If the witness answers “Yes,” are they answering yes to the fact that they went to the store? That they ran home? Both? Who knows…that’s why you object!

Calls for Speculation-“If you had known your best friend planned to rob your grandparents’ store that night, would you have tried to stop him?” Basically, if the witness is just guessing at shoulda/coulda/woulda/ or “how would you feel about” type questions, this is probably the right objection.

Argumentative-counsel isn’t really asking a question to gather facts, so much as explaining his/her own view of the situation and making the witness argue about his/her view. This is also known as “badgering the witness,” which is a phrase I fully support using because I like the way it sounds.

Asked and answered-this one is pretty self-explanatory. Again, this one explains itself.

Incomplete hypothetical-A good example of this is if you are questioning an expert witness and getting opinion testimony about a situation that will hopefully sound good. But, if you leave out enough facts that the situation is not analogous to the one you are attempting to make it analogous to, you can draw an incomplete hypothetical objection.

Harassing-there is literally no point to this question, except to harass the witness; i.e., “Mrs. Jones, before we talk about your car wreck, how about you finally answer the question of why Pillsbury took away your Blue Ribbon from last year’s bakeoff?”

Leading-(if not adverse witness) It’s probably fair to say that you know this one already, right?

Assumes Facts Not in Evidence-I’m terrible about this one and its sibling (lacks foundation) because I’m usually in a hurry to get to the point. If you hear these objections being raised, back up a few steps and take it slower to get to your point. Similarly, if someone is charging forward, you can raise this objection. Oftentimes, counsel will let these go if the underlying matters aren’t in dispute.

Misstates the Evidence-this is another easy trap to fall into.

3. Other (But, I thought there were only two categories?!) These are the non-form objections that you will hear frequently:

Irrelevant -this is a evidence question, it doesn’t need to be raised at a deposition unless it also fits into one of the other categories above.

Hearsay-also an evidence issue, not an issue in a discovery deposition.

*Note: If you are going somewhere foreign, like NY or Canada, you should probably not rely on this. See also, Texas.