May the Record Reflect
May the Record Reflect
73. Depositions Done Right, with Carl Chamberlin
With most cases settling before trial, depositions have become the real battleground—and few people know that better than Carl Chamberlin. Carl has spent decades taking and defending depositions in private practice and teaching the craft for over 30 years. In a reprise of one of May the Record Reflect's most popular episodes, he’s here to share how to kick things off the right way—from setting the stage with introductory matters to navigating preliminary and substantive questions.
Topics
3:22 The purpose of depositions
6:20 Difference between gathering information and obtaining information
10:38 Why depositions are important
12:30 Physical settings for remote depositions
14:15 The “usual stipulations”
17:20 Getting commitments
21:27 Commitments in remote depositions
24:42 Preliminary questions
29:51 Structure of substantive questioning
33:30 First demo
36:57 Key phrases for asking open-ended questions
38:25 And ones to avoid
43:01 Drilling down into a substantive topic
44:18 Second demo
1:04:19 Paying attention and listening
1:06:40 Using exhibits
1:10:15 Dealing with interruptions
1:13:56 Carl’s early depositions
1:16:53 The Effective Deposition
1:21:36 Signoff questions
Quote
“We want to make our questions clear and concise. Simple. The clearer the question, the better the answer. The fewer the objections, the more powerful it is.” Carl Chamberlin
Resources
Carl Chamberlin (LinkedIn)
The Effective Deposition, Sixth Edition (book)
On today's episode of May the Record Reflect.
Carl Chamberlin:The vast majority of cases are being resolved by motions, particularly dispositive evidentiary motions like summary judgment and by settlement. So, where do we get the most persuasive evidence for motions and leverage for settlement? It's almost always in depositions. Documents are important too, but documents can be discussed in depositions. So depositions are where cases are won and lost today. And without trials, the crucible of truth, so to speak, is in the questions and answers in a deposition. So we have to be able to take and defend a deposition proficiently, professionally, and strategically.
Marsi Mangan:This month, Studio 71 is working on new episodes for 2026. So while we're on a short break, we are bringing back the number one episode of all time, which is about the number one topic of all time, depositions. Two years ago, I sat down with Carl Chamberlain, a longtime NITA faculty member with decades of experience in taking, defending, and teaching about depositions. Carl is the lead appellate court attorney for the California Court of Appeal and an adjunct professor of trial advocacy at UC College of the Law in San Francisco. He is also a former litigator who handled cases involving securities, intellectual property, and complex civil litigation in both federal and state courts. Three years ago, he updated the classic primer on depositions, titled The Effective Deposition, Techniques and Strategies That Work, published by NITA. In this episode, Carl shared some of those techniques and strategies that work and even pulled me into a few live demos where he was the one asking questions, not I. Here's our interview. So, Carl, let's start out this interview right with a softball. And um, what I mean by that is just actually a little refresher. What exactly is the point of taking a deposition? Remind us what we are trying to accomplish.
Carl Chamberlin:So, overall, the point of taking deposition is going to be to get all the information that you need from the witness on the record to use later in the case, whether it is preparing for trial, preparing for other depositions, summer judgment motion, negotiating a settlement, whatever it is. But your question actually gets to a really important point, and that is that we always have to keep in mind at every part of the deposition, what am I trying to accomplish? Am I trying to find out all of the information or just particular information? What is really my purpose for that line of questioning? Because only if we know where we want to end up can we know how to get there. So I like to think of depositions actually having a number of purposes. Some of them have all of these purposes, some only a couple. But the first and main purpose is going to be gathering information. Everything that the witness knows, right? The good, the bad, um, new facts, things that you thought were true but just wanted to confirm all of the information. A second purpose, maybe for a different topic area, would be I just want to obtain some specific factual admissions, facts that I can I can easily use to support my emotions or trial. Another purpose may be I just need to preserve this testimony with a clear record, right? Something to cite to. And especially if you think the witness isn't gonna be available for trial or for summary judgment, this is going to be their testimony. A fourth purpose is is to facilitate settlement. Right? What happens in the deposition is going to give you leverage and negotiations. You're able to size up the witnesses. This is gonna be a believable witness before the trier of fact, you can size up counsel. So there are a number of different purposes, and some of them always apply, like preserving the testimony and facilitating settlement. But for any given line of questioning, it may be to gather all the information or just obtain specific admissions. And the reason that this is so important is because depending on the purpose for your line of inquiry, you're going to be asking different types of questions and you're going to be doing it in a slightly different way. So the overall thing, let's get all the information that we need for this particular witness, but for specific topics, we're really going to want to keep in mind what we want to accomplish.
Marsi Mangan:What is the difference between gathering information and obtaining admissions? That seem that line sometimes seems a little bit blurred. How would you describe the difference?
Carl Chamberlin:Ah, yes. So here's how I would distinguish it. The quick answer is that gathering information gets you all the information the witness has to say, the good and the bad. And obtaining admissions is just getting on the record the stuff that's good for you. So let me explain that a bit. So gathering information means, as I said, you want to hear everything the witness has to say about a topic, favorable for your case and not favorable. And the idea is that by finding out both the good and the bad that the witness has in mind and could potentially include in a summary judgment affidavit or a trial, we'll know what we're up against. Eventually it's going to come out, so we might as well find out about it now. If we find out about the bad stuff at the depot, we'll still have time before summary judgment and trial to deal with it, right? So we can conduct more discovery, we can find contrary evidence, we can adjust our case theories or our claims a bit. So by getting both the good and the bad at the depot, we can best prepare our case and evaluate our case. Now, obtaining admissions is just getting the witness to admit the stuff that's favorable to you. And in certain situations, that's your purpose. So just the good stuff on the record. For example, as I as I mentioned, you might know the witness is going to be unavailable for summary judgment and trial because they're critically ill or moving outside the jurisdiction of subpoena power. And so the deposition testimony is going to be admissible and it's going to be used instead. So you might decide, you know, I only want their testimony to be admitting facts that are favorable to me. I don't want the bad stuff preserved on the record. And maybe I can gather information from some other witness. So that could be a strategy call just to pursue that purpose. Now there's another scenario I just mentioned quickly because it's it's so common where you have both purposes of gathering information and obtaining admissions. So it could be that you've been gathering information, you're using your open-ended questions, you get um all the witnesses' information, and yes, you've you've gotten some favorable testimony, but it's scattered throughout like 30 pages of deposition and interwoven with all these harmful statements, too. So now I might want to create just a concise portion of the deposition with questions and answers, admitting just the favorable facts, so I can have a persuasive little passage I can easily cite to, or a nice clean segment of the video that I can show to a jury. So to do that, I switch my purpose to just getting favorable admissions, and to do that, I change the nature of my questions so they're more leading and the like. But that's the distinction that I draw between gathering um all the information and just obtaining admissions. I sometimes say that if I'm gathering information, I'm getting everything out of the witness's brain. If I'm obtaining admissions, I'm putting words in the witness's mouth.
Marsi Mangan:Got it. So that has an impact on the questions that you ask and the way that you ask them versus um, I'm thinking like open-ended questions versus close-ended questions.
Carl Chamberlin:Yeah, absolutely right. So if you're gathering information, you really want to keep your questions open-ended. Who, what, when, where, why, how, get the witness talking, follow up, make sure you got everything. If you're gaining admissions to the extent you haven't already got it, gotten it by just asking your open-ended questions, you're going to ask more leading specific questions so that the example would be so the car was red, and then the witness will say yes, and you have that little nugget right there, very clearly, in the deposition testimony.
Marsi Mangan:Excellent. Thank you. It seems like depositions are actually more important than ever. Why is that?
Carl Chamberlin:Because cases are not going to trial. And so, you know, less than 1% of civil cases are going to trial in this country, according to some 2022 study. So that's federal court, that's state court. So that means that the vast majority of cases are being resolved by motions, particularly dispositive evidentiary motions like summary judgment, and by settlement. So, where do we get the most persuasive evidence for motions and leverage for settlement? It's almost always in depositions. Documents are important too, but documents can be discussed in depositions. So depositions are where cases are won and lost today. And without trials, the crucible of truth, so to speak, is in the questions and answers in a deposition. So we have to be able to take and defend a deposition proficiently, professionally, and strategically.
Marsi Mangan:So not only are they more important than ever, another difference is that they are held remotely more often than in the past. They are easier to coordinate with opposing counsel when they're held remotely. They save travel time, even if you're just driving across town. And of course, they save your client massive, massive amounts of money, which really makes them happy. But what I want to ask you about specifically with depositions is about the setting. What should we know about the physical setting for doing a remote deposition?
Carl Chamberlin:Well, for the attorney taking the deposition who is not in the same room with the witness, you don't know what their physical setting is. And so you have to be careful as to who is in the room with that witness and is the witness cheating by referring to documents or people or texts or whatever in answering their question. For the attorney defending the deposition, if they're not in the room with the witness, then you have to find a way to have that same amount of presence for the witness. In an in-person deposition, you will try to sit close to the witness, and you can't really do that online when everybody appears in separate boxes. And so, how will you have that presence? And you will always want to have your camera on. You will want to figure out how you're going to timely object and instruct the witness. So those are the two main things that that come up in terms of the physical setting for remote depositions. And there are others in terms of how we're going to get documents in front of the witness, you know, the exhibits and that sort of thing. But those are the two main ones.
Marsi Mangan:And there was some discussion about the phrase the usual stipulations. And it was said avoid agreeing to the usual stipulations. First of all, what does that even mean? And what should you agree to instead?
Carl Chamberlin:Well, you you've hit the nail on the head. No one knows what it means, right? So people might have an idea in their own minds of what it means to them. And maybe even within a certain geographical location, there's some sort of custom. But the fact is that there is no universal meaning for the usual stipulations. And the problem is that someone says that to you, you know, so usual stipulations counsel, and you think, well, I don't want to appear ignorant and ask what they are, and they're usual stipulations, so gee, they can't be that bad. So I I guess I'll I'll just stipulate to it. But you can't, because, of course, you don't want to stipulate to anything unless you really know what you're stipulating to. And if you are going to stipulate to something, then you should make sure that that's in writing and preferably on the record in the deposition. It's possible that some of those usual stipulations turn out to be something that you don't like, that isn't good for you, right? And typically it refers to one of two, at least one of two things. One has to do with the defending attorney doesn't have to object in order to avoid waiving the objection as to form or foundation. Uh, and the other type of thing is the extent to which the witness waves or doesn't have to correct and uh sign the deposition transcript. Um what should you stipulate to instead? You can take into consideration those possibilities, two of which I've already mentioned and figured, well, is this going to benefit me or not? And um that's kind of a calculus that would take us a few minutes to talk about. I think by and large, you know, the advice that I was given that I always went by is that don't stipulate to anything. You don't need to. Just agree to proceed with the rules that are in the federal rules of civil procedure or the state code of civil procedure, whatever you're operating under. Those are good rules, right? And people understand what those rules mean, and there's been an interpretation of them. Just follow those rules. So I was always taught to do it that way. I always did it that way. I understand that some people think, oh, I can get an advantage if I don't have to object, or if I I say that the other side doesn't have to object. And I I hear all that. We can debate it, but I would say that the takeaway is don't stipulate to anything you don't understand you're stipulating to. Make sure that it's on the record, and don't be afraid not to stipulate and just to proceed under the rules.
Marsi Mangan:Just default to no rather than yes. So moving on to commitments, which is where you get on the record your deponent is coming to a shared agreement about what the rules, the ground rules are for the deposition. What are some of the commitments that you always request of the witness during the preliminaries?
Carl Chamberlin:Yeah, so right away I want to get the witness to commit to some ground rules that are going to set the tone of the deposition and help keep the witness from later changing their testimony after the deposition. So again, there's a long list that people select from in terms of the commitments that they're going to get the uh witness to agree to. But these are the ones that I think are essential. Number one, the witness understands they're under oath to tell the truth. Secondly, that telling the truth means to tell the whole truth and nothing but the truth. So you're entitled to full and complete answers. Third, if they don't understand the question, then they should tell you. Fourth, if they need a break, then they need to tell me. And I'm not going to necessarily say, oh, and we'll take a break right away, but I the way I would usually say it is something to the effect of during this deposition, we'll take a break in the morning, a break in the afternoon, and a break at lunch. But if you find that you need a break at any time, just let me know and we'll break at the next appropriate time. Sometimes we add something to the effect of, if I've asked a question and you haven't answered it yet, then I'm going to ask you to respond to my question before we take a break. But the point is that you want it to sound like this is not a marathon and the witness is not, you know, being put through this terrible ordeal, and that if they need a break, they can take a break. And practically speaking, if they need a break, their attorney's going to assist on a break anyway. That the there's one more commitment, and that is that I want the witness to agree that there's no reason for like illness or being under the influence of some sort of substance that they can't give their full and accurate testimony today. And so there are a number of reasons for all of these uh commitments. And one of the reasons is and the main one is to get the witness to commit to things that will reduce the chance of them later saying that, oh, they didn't understand the question, or oh, they were uh under medication and they couldn't understand what was going on. Oh, we you know, I didn't know that I could take a break. I was so tired, I couldn't remember any of Chamberlain's questions. I was just doing the best I can. So please, please, jury, you know, just let me off on on this testimony. Um, I didn't really mean it. If we've set forth these commitments, then we can go back and we can say, wait a minute. I told you, and you agreed, that if you needed a break, you would let me know. You didn't let me know. I told you, and you agreed, that if there's any reason you couldn't continue with this deposition and give full and accurate testimony, that you would tell me, and you didn't. So that is the main purpose. And there are other purposes in the sense that, you know, by me just stating the rules, then I've established: hey, it's my deposition, my rules, I'm in control. Um, it's it's a few questions that are not on the merits. So we are kind of building maybe a little rapport with the witness. Um, we're making it sound like this is a fair proceeding. Yeah, I'm just being so fair to the witness. Um, and and we're also explaining rules that help the deposition proceed um in an orderly way. So, for all those reasons, um, those are the essential commitments that we want to get from the witness.
Marsi Mangan:Okay. So that's a non-threatening kind of friendly way to get going into the tougher questions. The whole purpose for being there. So um we talked about how more depositions are held remotely. So are the commitments different when the deposition is remote?
Carl Chamberlin:Well, there's more of them. So um remember the two main problems that we have with remote depositions. First of all, the deposition taker doesn't know where the witness is, or at least doesn't know who is with that witness. And then secondly, you don't know if the witness is trying to cheat. And so because of those new variables that are introduced by the remote deposition, we're going to add a couple more commitments or a few more commitments. And different people do it differently, but the examples that I would have is that I would have the witness commit that there's no one else in the room with them. And that they'll let me know immediately if anyone else comes in. They have no applications or programs or documents open on their computer screen, other than what they're using to participate in the deposition. There are no electronic devices, including cell phones, within their view. There are no documents related to the case within their view. And then they agreed not to refer to anything or anyone in answering my questions unless I tell them to. So those might be some additional ones that you want to include to account for the differences in a remote deposition.
Marsi Mangan:Okay. They just kind of mentally need to drop into the same sort of setting that they would be in if it were in-person. Yes. You know, no documents, no other people, no family members in the room, no telephone calls, so on and so forth.
Carl Chamberlin:Yeah, yeah. You don't you don't get to ask a friend, you don't get to talk to your attorney during an in-person deposition, and you don't get to hear either.
Marsi Mangan:I've also heard that it's important to confirm that the the deponent has the phone number and email address of counsel so that if the line drops and you need to reconnect, you know how to do that.
Carl Chamberlin:Right. Yes, that is important. Now there are actually a couple of schools of thought here. So a couple of alternatives. One is for the witness to contact their attorney, whoever is representing them, so that they can get back online. And the other is to have them agree that they're going to um contact the court reporter or whoever is hosting the remote deposition. The thinking there is that you don't want to invite them to go chat with their attorney before the question proceeds. You want to direct them back to sort of the neutral court reporter. And in fact, it's even great if you can't to have the court reporter in the same room as the witness, because then a lot of the problems with cheating kind of go away. It's also easier to show the witness um exhibits and um easier in terms of administering the oath and everything else. So if that's a possibility, that's a good thing.
Marsi Mangan:Yeah, those are interesting points. So moving on to preliminary question questioning, excuse me. What exactly is meant by preliminary questions?
Carl Chamberlin:The way I think of it is basically two categories of things. One is the witness's background. And the other would be what the witness did to prepare for their deposition.
Marsi Mangan:Okay, so then what is the purpose in asking them? And if you could also touch on what some of the most important topics that you need to hit on with preliminary questions then?
Carl Chamberlin:So let's take first of all the background questions. This is typically their education, their training, their jobs, um, sometimes their their family life or where they live and that type of thing. All of this should be in some way relevant to their credibility or to the case. There are a number of reasons that we want to go into this, but then I have a caveat. So the number of reasons that we want to uh go into this is first of all, that sometimes the background information, like they're training, is going to be critical to the case, right? They conducted a test or they conducted surveillance. Well, are you trained for this? And so we want to figure that out. Sometimes in asking about these questions, you come up with this gold nugget of information that you didn't expect, right? So you're asking about, you know, their different jobs, and you notice that they didn't have a job for a couple of years, and you ask them, What were you doing during that time, and you find out that they were in federal prison for forgery. So it's possible that it's going to give you some great information like that, um, although that's not very common. Uh and it also allows the witness to settle in, right? So you can ask questions that aren't on the merits and develop a little bit of rapport, conversation with the witness. Most people enjoy talking about themselves to someone who appears interested in a non-threatening way. And so all of that is good. So you can get some information. Now, here's a caveat. This takes some time. And so you really have to think is spending all this time worth it given all the other things that I have to get to in a limited period of my deposition? So we kind of weigh what else we need to get out of the witness and how valuable this background information might be. Then we have the other category. So that's what the witness did to prepare for their deposition. And the questions are like who did you talk to in preparing for your deposition? Um, what did you look at? What documents, what videos, etc. There are a number of purposes for this as well. So one thing is that by asking these questions, you can find out who they talked to, what they looked at, and therefore maybe there's some witness out there that you didn't know about, or some document that you didn't know about, or that should have been produced. Another reason is that by confirming that the witness spoke with, for example, their attorney in preparation, well, then it suggests that they should be prepared for the deposition. And even though you can't get into the attorney-client communications, you can find out like there's a certain amount of time that they prepared for this deposition. So they knew what a deposition was. It's harder for them to later say, Oh, I can't remember anything. It's like you just spent two hours preparing for your deposition. So another thing is that occasionally the defending attorney slips up. And so they might prepare the witness with a privileged document, right? Something that you wouldn't be entitled to get. But if the witness has been prepared with a privileged document and it actually refreshes their memory about the facts that they're testifying on, and different jurisdictions handle this slightly different, but the main rule, the basic rule, is that then you get that document. Out of fairness, you get to see what prepared the witness. So that doesn't happen very frequently, but if it does, it can be really uh really helpful. So background can also be very important in terms of um the 30b6 witnesses, rule 30b6 witnesses or entity witnesses depositions of an organization because the witness is supposed to be prepared with all of the information of the organization, so you want to make sure that that occurred. The takeaway from this, too, though, is that it can take a lot of time. And so with these topics and with every topic, you want to think ahead of time. What do I want to accomplish with this witness? How much time do I have? And how much time should I allot, roughly, to each of these topics, given the fact that something new is going to come up? And so we want to allow plenty of time.
Marsi Mangan:And so you've done that calculus, and then you have moved on to the substantive questioning. And that is the next part of the deposition, and of course, the most interesting is what we're here for.
Carl Chamberlin:Right.
Marsi Mangan:So, what is the what is the structure of the substantive questioning portion of a deposition?
Carl Chamberlin:So we have thought of all our topics, right? And so um we can think of the deposition as comprised of various topics based on what we need to get from this particular witness. And then for each topic, we'll have a structure and some questions based on the purpose for asking questions about that particular topic. So, for example, it may be a topic, I need to find out everything that the witness knows. And so there are going to be certain question techniques and structure for that. Maybe another topic I only need to find out that in that conversation they didn't talk about the formula for Coca-Cola. I confirm that, and so I can move on. Let's assume, though, that we have a topic, like most topics, where we want to get all the information out of the witness. And so there are going to be four principles that are going to relate to the structure of our organization, and it's also going to relate to the questions that we ask and how we ask them. And those four principles are going to be that we ask primarily open-ended questions. Right? Who, what, when, why, how, as opposed to leading cross-examination questions, but open-ended questions, right? The second principle, listen and follow up. So we're going to listen to the witness and then follow up with more specific questions to fill in the blanks to get all of the information. The third principle is going to be sum up. Every now and then we're going to make sure that we understand what the witness has testified to. They agree to that, then that's great. We have a summary of their deposition testimony right there. If they don't agree, then they can add some more to it and we'll find out more information. And then the fourth principle is close off. So we want to make sure that the witness has got nothing else on this topic so that they don't, after the deposition, in a declaration affidavit in opposition to summon judgment motion, say, Oh yeah, here's this other information that I have. So the four principles ask open-ended questions, listen and follow up, sum up and close off.
Marsi Mangan:So, open-ended questions. Why are they so helpful?
Carl Chamberlin:They get the witness talking, right? And so it's a good starting point because the witness will give you a certain amount of information about what occurred in a conversation or at an accident scene or whatever the subject matter is. And you can then make sure that they don't have anything more to say in response to that, and also then start breaking it down. So it gets the witness talking. It forces the witness to come up with the facts on their own. It's easier than asking specific questions from the attorney's standpoint. It's more conversational, it's less threatening than, isn't it true that you were on such and such a place at such and such a time? And just ask, where were you? When was that? Uh it's less likely to get objections. I mean, who can object to what did you do? Um it's more efficient, and that's that's really the main thing. That open-ended questions are more efficient in getting information than um than just asking these close or leading questions that we're uh so inclined to ask.
Marsi Mangan:Well, I think this calls for a little demonstration. What do you think, Carl?
Carl Chamberlin:Yes, I think so. So let's do a demonstration of the difference between leading questions and open-ended questions. And so um we'll pick a topic. Let's say um let's say what you had for breakfast today. All right and let's say that that's really critical to the case. And so I'm gonna ask you some questions to find that out. And first I'm gonna start out with some more leading questions, closing questions. I'm gonna try to get everything that way. And then um, if that doesn't work, I'll I'll give another example where I would start out instead with open-headed questions. So here are my questions, Marsi. You ready? I think I'm ready. Okay. So uh Marcy, you had breakfast this morning, I think.
Marsi Mangan:I did.
Carl Chamberlin:And uh did you have an omelet? No. Did you have the bacon?
Marsi Mangan:No.
Carl Chamberlin:Did you have three or more eggs?
Marsi Mangan:No.
Carl Chamberlin:Did you have pudding?
Marsi Mangan:No.
Carl Chamberlin:Did you have uh coffee with your breakfast?
Marsi Mangan:I did not.
Carl Chamberlin:Well, Marcy, I mean, most people have coffee. I mean, you're telling me that you don't have coffee? All right, fine. Um did you have did you have jam with your with with toast?
Marsi Mangan:No.
Carl Chamberlin:All right. Um, did you oh gosh, what else is there? Did you did you have cantaloupe? No. Did you have fruit of any kind? Yes. Okay, all right. So did you have strawberries?
Marsi Mangan:No.
Carl Chamberlin:Oh my gosh. Okay, so that's obviously a silly little example, but it goes, you know, we hear this type of thing all the time, where people have in mind certain things, and so we're just asking these questions because we think we know the answer, and then it it it doesn't work out that way. So instead, let's just do it this way. So, Marcy, what'd you have for breakfast this morning?
Marsi Mangan:Uh, I had a pot of black tea, and then a few hours later, I had um I had a smoothie.
Carl Chamberlin:Okay. So there's our answer. One question. It was an easy question to ask. It was an easy thing to listen to. We have our information. Now, of course, I'm gonna follow up with some other stuff, other questions, but we have our starting point for our examination.
Marsi Mangan:It was starting to feel like I was gonna be here all day with this little interrogation. Yeah. Did you have kiwi fruit? Did you have an apple? Did you have cheese? Did you have a poached egg? On and on and on. That's right.
Carl Chamberlin:Yeah, yeah. And it's hard. I mean, it it forced me to think up different fruits, right? And uh so it's always easier to ask the open-ended questions. And then, you know, what you did is you gave me more than there was more than one part to your answer. So your, you know, part of it was the black tea. Another part was whatever you had later on. And so then I can follow up with those things and find out more information.
Marsi Mangan:Okay, great. So, what are the most important words and phrases that you need to remember when you're mentally formulating these questions in your head?
Carl Chamberlin:Right, and mentally formulating it is really a good point because we don't want to be just asking a list of questions because we want to flow in the conversation and be in the moment. So the most important questions are just the so-called reporters' questions, right? Who, what, when, where, why, how, describe. Um, if in doubt, if you're stuck, the witnesses said something, you don't know what to what to ask. Just ask why, or what did you mean, or what happened next. So these open-ended questions, who, what, who, why, how, please describe, um, are going to um you know, get you a long way.
Marsi Mangan:It's funny how hard that can be to um to remember, to, to start your question out that way. And another thing that I think is difficult is that um there's certain close-ended questions that kind of seem like they're open-ended. For example, can you describe blah blah blah? Did you go such and place such and such place? And if if you just remember to to take off the can you, and then you you're just with tell me or explain, right, or give me a list.
Carl Chamberlin:Right. Yeah, absolutely. And you know, you you actually have two good points there. I mean, one is that if we're open-ended who, what, where, why, how, then we're not limiting ourselves. And another thing is that we don't want to get in the habit where we're asking a question that has too many words in it, and words that can actually hurt us. So I like to give the example of, you know, you hear questions like this. So, witness, can you tell me, if you recall approximately how many hours you spent in this particular conversation with Mr. Smith, who was your boss at that time. Okay, so can you tell me? There's no reason to start your question with that because just ask the question. So we're gonna take that out. If you recall, no, you don't want to suggest to the witness that there's any possibility that they don't recall. So it's it's amazing how when you start out with, you know, do you recall what was said in that conversation? Witnesses, unless they really want to tell you, it's kind of like, no, not really. Instead, just say what was said in that conversation. Yeah. And the recollection, the testimony is better. Um, don't ask approximately how many hours. Like you're apologizing for asking them how many hours. I don't want to know approximately how many hours. I want to know how many hours. Um, and then all of the other language that goes in there. Perhaps we could just say, how long did you talk to Smith? So we want to make our questions clear and concise, simple. The clearer the question, the better the answer, the fewer the objections, the more powerful it is.
Marsi Mangan:It's interesting that you said that um sometimes the word choice that people use, like approximately, for example, is kind of apologizing. And I was as you were talking about that. But I was thinking, well, why would somebody apologize for being in a deposition and having to answer questions when that is actually the purpose of being in the deposition? It's to ask questions and not soften or you know, kind of pussyfoot around. So why do you think it's so hard for people to phrase open-ended questions?
Carl Chamberlin:I think it's hard because we come into a deposition with an idea of what people are going to say or what the answer should be. And so therefore, we phrase our questions just to get them to admit that thing. Rather than finding out what else might be in the witness's mind. And so we have that preconceived idea. I think another thing is that we have a natural tendency when we're asking questions of an adversary witness. You know, we're attorneys, so we go into cross-examination mode. Um, and there is a time and place for that. Don't get me wrong. We will be asking some leading questions to get admissions and some more closed-ended questions to get specific details. But we have to start with the open-ended questions and just it's kind of like pretend that it's a blank slate. Let's just hear what this person has to say and move from there.
Marsi Mangan:Do you think that it's generally a good idea to just right off the top ask those, as you call them, reporter questions? Who, what, when, where, why, how? Or is it it's not too formulaic?
Carl Chamberlin:You don't think no, I don't think so. I mean, if you have a strategic purpose to do something else, then that strategic purpose may prevail. But as a general matter, I always want to start out a topic with these broad open-ended questions so that I have a good starting point for what the witness is going to say. And then, you know, there's there's a certain structure that I would use in my examination after I've started with those open-ended questions.
Marsi Mangan:So this might be for attorneys who are early in their deposing career, a good time to, you know, literally write down on your pad or on a post-it note who, what, where, when, why, how. Um, and then refer to it in the in the deposition, just as a little touch point to remember open-ended questions. Open-ended questions.
Carl Chamberlin:Yeah. Yeah. And even before the deposition, you know, to have a list of things that you want to get and to mentally think, well, what questions am I going to ask? Who I have.
Marsi Mangan:So beyond asking open-ended questions, do you have a structure for asking about a substantive topic?
Carl Chamberlin:Yes. And it's called the famous funnel method. So the funnel method, it's called that because the method that we're going to use can be described by picturing a funnel, right? So a funnel is very broad at the top, very wide, very open-ended. And in the same way, we're going to start our topic with these broad, open-ended questions. And then a funnel gets narrower, right? And in the same way, our questions are going to follow up with more specific questions, narrower questions, um, more suggestive questions to poke and prod the witnesses' recollection. And then the funnel gets narrower still. And so we're in the same way, we're going to become narrower in our questions, and we're going to actually play back for the witness what you believe the testimony to be, and if that's true. So we that's the sum-up phase. And then at the very bottom of the funnel, we get this focused output, right? And and and that's and that's what it is. That's what the answer is. And in the same way, we're going to close the witness off so that we have a specific um and usable testimony in response to our questions on that topic.
Marsi Mangan:Well, would you like to do another demonstration of this technique, the funnel method?
Carl Chamberlin:Yes, absolutely.
Marsi Mangan:Okay.
Carl Chamberlin:I'm all yours. So we can't really use a case for this. So let's try something that everybody knows. Let's try the story of the three little pigs and the big bad wolf.
Marsi Mangan:Okay.
Carl Chamberlin:And let's say that um I want to find out about all the houses, all the little piggies' houses that this wolf went to, and then uh get start to get some detail about each of those houses as we would with the funnel method. And let's say you are the big bad wolf. Okay. Okay. And we'll start at the part of the depot where I'm um talking about this subject using the funnel method. Now, I have to say, this takes a while to develop. It takes a while to do the funnel method, um, both in this example and even more so in the real world, where you might have some additional follow-up questions. So let's hang in there and let's think about uh kind of the structure of what we're doing in getting a list of things and then following up on each one of those uh items in the list and asking some open-ended questions and then also pursuing the answer a little bit more. We'll go for a few minutes and and we'll we'll see how it goes. Okay, well, I'm in the hot seat. You got me. Let's go. All right. Okay, on the record. So, Ms. Wolf, I'm going to ask you about the times you've been to a residence of a pig. And by residence, I mean any house or wherever a pig was living. So please list for me all the residence of pigs you've ever been to.
Marsi Mangan:Well, I've been to uh a pig's house that was made of straw, and then I've been to one made of sticks.
Carl Chamberlin:Okay. What other residences have uh have of pigs have you been to?
Marsi Mangan:Um I have also been to one made out of bricks.
Carl Chamberlin:Okay. Any others?
Marsi Mangan:Um no, I don't think so. I mean I've seen wild I've seen wild boars at the zoo, but I don't think that counts.
Carl Chamberlin:Okay, so aside from wild boars at the zoo, what other residence of pigs have you been to?
Marsi Mangan:None that I can think of.
Carl Chamberlin:Now you say none that you can think of. So what would help you to remember all the pigs residences that you've ever been to?
Marsi Mangan:Um I don't think anything would help. I've been thinking about it and this is it. Just just those three.
Carl Chamberlin:All right. So we have House of Straw, House of Sticks, and House of Bricks. Have you now told me all the pigs' residences you've ever been to? Yes. Okay. In what order did you visit these houses?
Marsi Mangan:Uh in the same order that you listed them. First the house of straw, then the house of sticks, and then the house of bricks.
Carl Chamberlin:Okay, so let's start with the house of straw then. Describe the house of straw for me.
Marsi Mangan:Well, it's uh it it was a a small like shack made out of straw. It didn't seem very sturdy, and um that's about it. Just very, very small, made of straw.
Carl Chamberlin:Okay. Um where was this house of straw?
Marsi Mangan:It's in Wolfie National Forest where I live.
Carl Chamberlin:We're in the forest.
Marsi Mangan:Uh do you know where Piggy Pond is?
Carl Chamberlin:Yeah, I know where Piggy Pond is. Everybody knows where Piggy Pond is, I think. And how far is that from where you live?
Marsi Mangan:Um I would say a half a mile.
Carl Chamberlin:How did you know that the house of straw was there?
Marsi Mangan:Well, I I w walk by it every day. I try to get my 10,000 steps in, so I pass this house on the regular.
Carl Chamberlin:So you pass the house on the regular, so you've been there then multiple times?
Marsi Mangan:Yes, I've passed it many, many times.
Carl Chamberlin:Is there a distinction in your mind between passing it many times and actually going onto the property?
Marsi Mangan:Uh I don't know where the property line ends, but um so I may have walked on the property just by virtue of walking by it, by the house.
Carl Chamberlin:How many times did you walk onto the pro property to your knowledge?
Marsi Mangan:To my knowledge every day.
Carl Chamberlin:Alright. We're going to come back to that. We're gonna focus for right now on the particular instance um when you met with a pig at that house. Alright? So let's focus on that for now. On that occasion, who went with you to the house of straw?
Marsi Mangan:No one. Yes. I told my husband and my uh three wolf children that I was just gonna go out for a walk.
Carl Chamberlin:Did you tell them you were going to the house of Straw in particular? When you say that you told them that you were going to go for a walk, were those your exact words?
Marsi Mangan:Yes, I'm going for a walk. I'll be back.
Carl Chamberlin:Did you tell them anything else?
Marsi Mangan:No.
Carl Chamberlin:At that time. Okay. Why didn't you tell them anything else?
Marsi Mangan:I take a walk every day, so they know that I just take a walk, so there wasn't any need to embellish.
Carl Chamberlin:Why didn't you tell them that you were going to the wolf's house? Excuse me, the house of straw.
Marsi Mangan:They don't need to know I don't think they're interested in the route that I take. That I pass a pig's house or I pass a the pond or anything else that I might come upon.
Carl Chamberlin:Any other reason you didn't tell them? No. What day did you go to the house of straw?
Marsi Mangan:It was on uh Thursday.
Carl Chamberlin:What was the date?
Marsi Mangan:Oh, um Thursday April 25th.
Carl Chamberlin:Of what year?
Marsi Mangan:2022.
Carl Chamberlin:What time on April 25th, 2022 did you get to the House of Straw?
Marsi Mangan:Uh I would say around ten o'clock.
Carl Chamberlin:You said around ten o'clock. Could it what range of time um might you have arrived there?
Marsi Mangan:I would say no later than ten ten.
Carl Chamberlin:Okay. And how early might you have gotten there?
Marsi Mangan:Ten o eight, perhaps?
Carl Chamberlin:Oh, okay. So you arrived between ten o eight and ten on April twenty-fifth, two thousand twenty-two at the House of Stroch, right? Yes. How long were you there?
Marsi Mangan:Uh not for very long. Um just a a minute or two, perhaps.
Carl Chamberlin:Could it have been five minutes?
Marsi Mangan:No, that feels like too much time.
Carl Chamberlin:So some amount of time, maybe less than five minutes, which would mean that you left somewhere around 1013 or 1015 is does that sound right?
Marsi Mangan:At the latest, yes.
Carl Chamberlin:Why did you go to the house of straw?
Marsi Mangan:I had seen it so many times and I was just interested in s seeing who lived there and what it was about, what it looked like up close.
Carl Chamberlin:Okay, was there any other reason you went to the house of straw?
Marsi Mangan:No. Just curiosity.
Carl Chamberlin:Did your purpose uh for being there or staying there ever change?
Marsi Mangan:No.
Carl Chamberlin:Did the fact that a pig lived there make you want to go?
Marsi Mangan:No, I I didn't even know there was a pig who lived there.
Carl Chamberlin:So all the times that you passed by and you said there were many, is it your testimony that you never saw a pig at the house of straw? Except for this one occasion.
Marsi Mangan:That is correct.
Carl Chamberlin:Didn't you go there because you wanted to eat a pig? No. Why not?
Marsi Mangan:I I went there because I was curious. And that's the only reason Yeah, it it wasn't because I wanted to eat a pig. I ate the pig after the house fell on him, and I'm a wolf, so of course I'm gonna I'm not gonna pass up a free meal, but I didn't go there to eat a pig.
Carl Chamberlin:Are you telling me that the only reason you went there and stayed there to the extent you stayed there was because you were curious about the House of Straw?
Marsi Mangan:Yes.
Carl Chamberlin:So you arrived there between ten oh eight and ten ten. And what did you observe when you first got to the House of Straw?
Marsi Mangan:Well, I saw the house and I saw flowers planted around the perimeter, and there was a a little gravel walkway up to the door.
Carl Chamberlin:What did you do after you got there?
Marsi Mangan:Uh well, actually I sneezed. I uh I had COVID when this happened, and um I was congested, and I I just sneezed.
Carl Chamberlin:After you sneezed, what did you do?
Marsi Mangan:Well, the house collapsed. The house of straw collapsed because my sneeze was so huge. And so I stepped back in horror to look at what had happened, and um, that's when I noticed that there was a pig in the house. And that the pig seemed to have died when the house collapsed.
Carl Chamberlin:Did you ever say anything to the pig?
Marsi Mangan:I did not, no.
Carl Chamberlin:What did the pig say to you?
Marsi Mangan:Well, the pig was dead, so he didn't say anything to me.
Carl Chamberlin:When you saw that the pig had died, what did you do?
Marsi Mangan:Uh I looked over both shoulders and then I proceeded to eat the pig.
Carl Chamberlin:Why did you eat the pig?
Marsi Mangan:Uh I was hungry. It was uh It was morning and I was hungry. And I'm a wolf and wolves eat meat.
Carl Chamberlin:So let's look at this a little bit more closely. You first arrived and what period of time between you stepped onto the property um what what period of time was there between the time you stepped on the property and the time that you sneezed?
Marsi Mangan:Uh two minutes.
Carl Chamberlin:During those two minutes, what were you doing?
Marsi Mangan:Walking around the house.
Carl Chamberlin:Where around the house?
Marsi Mangan:Oh, outside the house. Outside the house. Looking at the flowers and the structure of the house.
Carl Chamberlin:Why were you looking at the structure of the house?
Marsi Mangan:Well, I just passed by it so many times that I was curious to see what it w what it actually looked like.
Carl Chamberlin:Did it ever occur to you that if you sneezed, the house would come down? Uh no, it didn't occur. What were you thinking at the time?
Marsi Mangan:Do you mean when I sneezed or before I sneezed? Um, at the time I sneezed, I was thinking that uh I hoped nobody would be around to catch the germs that I just sneezed out all over the place.
Carl Chamberlin:And what did what were you thinking before you sneezed?
Marsi Mangan:I was thinking uh that this was a cute little house.
Carl Chamberlin:I think your testimony was that y the house fell because you sneezed so hard. Is that an accurate statement of what you said? Yes it is. How do you know that?
Marsi Mangan:How do I know that I s caused the house to collapse by sneezing?
Carl Chamberlin:Right.
Marsi Mangan:Because after I sneezed it was no longer standing.
Carl Chamberlin:Didn't you say something towards the pig's house out loud?
Marsi Mangan:Uh it sounds like you're asking if I said I'll hop I'll huff and I'll puff and I'll blow your house down. Is that right? Is that what you're asking me?
Carl Chamberlin:I'm asking for everything you said, but let's talk about that. Isn't it true that you said that you would huff and puff and blow the pig's house down?
Marsi Mangan:No, that was just me sneezing. I I am being misunderstood here. I would never huff or puff or blow a house down. I would sneeze and accidentally blow it down.
Carl Chamberlin:Have you ever sneezed and accidentally blown down a house before?
Marsi Mangan:No, this is the first time.
Carl Chamberlin:And have you ever on any occasion um told a a pig that you would huff and puff and blow their house down?
Marsi Mangan:Not that I can recall.
Carl Chamberlin:Okay, let's stop there. All right. So let's talk a little bit about what happened in our our our demo. Very good, Marcy. You threw me some curveballs there. Okay. So first of all, uh we we got the list, right? So we wanted to start out by getting the list of houses with the idea that I want to get the complete list. And in fact, I said, have you now told me, or something to the effect of have you now told me all the house pigs' residences, pigs houses that you had been to. So I have the list, and now I'm going to look at each item on that list, or in other words, each house. And we're going to start with one of them. And so it's going to be the house of straw. And with that, we start asking open-ended questions. Who, what, when, where, why, how. And depending on the answer, may follow up with a little bit more. Like, did you do this? Did you do that? What do you mean by this? So that we are exploring in a very logical and thorough way everything that the witness is going to say. In the real world, maybe there are some additional questions that I would have asked, or that you, the listener, would have asked, because we can always think of something more, and also because if it's actually our case, we would have an idea of what's important. But the important thing is following up with these more suggestive questions, but always starting out with the open-ended questions. And then closing off the testimony with, you know, is there anything else? Is there anything else? Is there anything that would help you to remember? Have you now told me? After finishing the discussion of the House of Straw, and I would have had many more questions exploring what her testimony, her account is. When we're really finished with that item, then we would go to the next item, which would be the house of sticks, and we would continue on and on like that. Now note that some of the information that I got was not favorable, right? The wolf didn't the the wolf didn't give it up, right? The wolf didn't say, okay, okay, okay, I I I threatened the pig and then I blew the house down because I and I and I ate him. But the important thing was that I was getting the story. And maybe in the real world I would have done other discoveries. So I'd have a little bit more lead and advanced notice of what the witness is saying, but a lot of times you don't. And so you start to think, okay, I'm gonna ask why. I'm gonna ask what. I'm gonna ask, have you ever done that before? I'm gonna ask, did you ever record that? Have you ever told anybody this account? I'm gonna probe it. The central idea is simply this get the list, make sure it's the complete list, go item by item, ask open-ended questions, who, what, where, why, how, describe, and follow up with more questions that suit your purpose for the deposition and your theory of the case. So, as you can tell, this can be very thorough. It is like the almost foolproof way of getting all the information from the witness, especially when you start bringing in, confronting the witness with uh documents and and other people's testimony. But we have to use it judiciously because it takes a long time. So, are we gonna funnel everything? If we have the time, well, we might as well get all the information. But when we're planning our deposition, what are the things that are most important? What I really need to know the witness's point of view is and the facts that they have. And if I really want to know everything, this is the way to get it.
Marsi Mangan:And what it really comes down to, just as in your direct and cross-examinations, is listening. Listening is such a crucial skill. You've got to listen to the person who is speaking to you. And then you've got to process the answer that they're giving to you. You just ask them a question. You've got to listen to it. So, how do you get good at paying really close attention to the witnesses' responses?
Carl Chamberlin:I think the first thing you have to do is you have to know what you're listening for, right? So you're not gonna close yourself off to that. In other words, you're not gonna limit your questions to just the stuff you already know, but you should have an idea of what the answer might be, so that then when you hear what the answer is, you know if there's something off about it. You want to also be listening for classic uh witness hedging, like approximately, generally, and the like. I find it helpful if I'm asking a witness to describe something, and I have in mind what picture should be forming in my mind to try to visualize the information that I'm getting. As the testimony comes in, could a neutral observer, someone who doesn't know anything about the case, really picture what occurred? And if not, then I should be asking more questions to elicit that information. Um, you know, if I put myself in the witness's position, what would I have seen, what would I have felt that might help me to gauge whether they're giving me the full um information as well. Um, you know, we we want to take notes so that we can remember what the witness said and their different parts, and and that it helps us, you know, be good listeners and and remember things. And then the other idea I think I have is simply that, you know, what makes a good listener in the real world? Right? And so by smiling and nodding as if you understand and appreciate their answer, they're more likely to keep talking.
Marsi Mangan:Again and again, it just seems like the more you kind of stick to your script and you are you know just clinging to it for dear life, um, the harder it is for you to to effectively depose somebody and get the information that you need, or cross-examine somebody, or so much of so much of these advocacy skills that are really important. So now I want to turn our attention to exhibits. What do we need to know about using exhibits, such as letters and receipts and correspondence?
Carl Chamberlin:Yeah, yeah, absolutely. And and even video and and that type of thing. So exhibits are absolutely critical to use uh in a deposition because of the persuasiveness of documents and video and the like. So here are my quick tips in terms of using exhibits. Um, first of all, uh try to get the witness's unaided testimony about an event or about a document before showing the witness that document, because otherwise the testimony is going to be circumscribed by what's on the face of that document. So try to get the unaided testimony first. Uh another thing is after you have the exhibit in front of the witness, to go ahead and take the opportunity to lay an evidentiary foundation for the later use of that exhibit. And it doesn't have to be a really extensive thing, but at the very least, you know, get the witness to authenticate. Yes, that appears to be a true copy of the July 7th email I sent to Cuzitz. Um then uh two critical things. One is go over the document with the witness, not just what the document says, but what the document means, um, or what the document caused. So we already know what's on the document, right? What we want to find out is what the author meant by those words, or what the reader perceived when they read those words. Um, what was the reason for this correspondence? What action did it precipitate on the part of the person who read it? What is the significance of this document? And then lastly, as we're doing this, we want to make sure that we're keeping the record clear. So we always want to refer to a document by the exhibit number that it has been marked with, right? So it's exhibit five, then we say, like the let's look, let's look at exhibit five, or let's look at the exhibit five letter, right? And then point out and read the particular part that you want the witness and really the trier of fact to be focused on. So it could be, let's look at the first sentence in that first paragraph of your letter. It says, da-da-da-da-da-da-da. And then ask the question, what did you mean by you know your use of the word uh kaleidoscope? That way the record is really clear what we're talking about. It sets the scene, and then the witness can provide that information. So don't just use a document by saying, hey, you recognize this, it says that, doesn't it? Okay, thank you. But really probe the witness's information on the significance and the meaning of that document, keeping the record clear as you're doing it.
Marsi Mangan:So you're in the deposition and you're managing all these details and these facts and thinking things through. But meanwhile, there is the attorney who is representing your the witness, and they're objecting, they're interrupting, and and kind of throwing things off. So, how do you deal with that as an attorney?
Carl Chamberlin:Yeah, um, it it would be so much easier if if there wasn't an opposing counsel, right? But um, there is an opposing counsel, and ultimately uh we're going to have to deal with that. And so what I say about that is we're going to outwardly ignore, inwardly consider. And let me explain what I mean by that. So outwardly, right, by by all impressions that I want to give, I'm ignoring what that attorney is saying. Objections are made on the record, they may be made in good faith, maybe they're made to throw the to throw me off or to coach the witness. Um, but they're on the record. They're not going to be decided until some judge rules on it later, if ever. The witness still has to answer the question. So there's no reason really for me to debate with the attorney whether their objection is well taken or not. And in fact, opposing counsel wants you to debate in order to distract you and take up time debating objections rather than asking their witness about important stuff. So we're going to ignore the attorney. We're going not to engage or even look at the attorney. Instead, remain focused on the witness and simply say, You may answer. Okay. Now, that's the outwardly ignoring two other things to consider. First, the idea of inwardly considering the objection. Because inwardly you might think to yourself, hmm, maybe that objection has some merit. So maybe I better clean this up. So then what we would be doing is first getting the witness's answer to our question, the one that we asked, and ignoring opposing counsel, but then rephrasing a question or asking clarification questions or foundational questions in order to cure a potential problem that could later on have some evidentiary significance and preclude us on evidentiary grounds from getting that good testimony in. So we're going to outwardly ignore, but inwardly consider in case we have to fix something. Now, there are times when the witness's attorney is coaching the witness and it's working, or there's improper instructions not to answer. And in that instance, we have to step it up. We have to call that out as improper. It's inconsistent with the rules. Perhaps we talk to the attorney outside the client's presence and try to reason with the attorney. Maybe we have to bring a motion, whatever, but we will have to deal with that. It's just that the longer that we can ignore the attorney and just get the information from the witness, the smoother, the better, the faster it's going to be. And in all these disputes, the last thing that we have to remember is that, you know, we have to, no matter what the attorney does, no matter what the witness does, we have to be the professional one. We have to be the one who seems to be reasonable. That doesn't mean we give in. We have a position and we're going to pursue it, and we're going to stand where we have to stand. We're going to be reasonable, and we're not going to, you know, we have to be the adult in the room. Yeah.
Marsi Mangan:Yeah, great point. So what do you remember about the very first deposition that you ever took?
Carl Chamberlin:Uh I've probably blocked that out of my mind. Um, my my first depositions were asking, I think, uh asking questions at depositions that were actually um called by another party, so you know they'd conduct the deposition, and then I'd be representing co-defendant would ask some additional questions. I don't remember anything specific, but I do remember generally, right? I I remember being apprehensive, right? I am I gonna ask questions, right? Um what if the witness doesn't understand? What if there's an objection? What if there's an instruction? What am I going to do? People are gonna know that I'm like you know, a beginner. Um, and you know, it's pretty obvious. Uh and so, you know, if I had to talk to my past self now, I'd say, Carl, relax, right? Know your case so that you know what's important to talk about. Just be curious, ask opened questions, listen, follow up, and you know what? It's not gonna be perfect. And there's gonna be some tension and some things happen that you can't plan for, but just proceed, have in mind what you you know, your objectives, and proceed as best you can.
Marsi Mangan:Well, those are all really good tips for anyone who is facing down their first deposition. How many depots did you take before you kind of felt like, uh, I got this? I'm not such a I'm not so green anymore.
Carl Chamberlin:That's a hard question to answer because, you know, it's probably the case that after three or four, I thought, hey, yeah, you know, I I got this, I got the routine. But you realize that every deposition poses a new challenge, right? Every witness is different, every opposing counsel is different, jurisdictions are different in terms of the rules regarding privilege and in terms of breaks, um, in terms of availability of courts to go to if you have an issue. Court reporters can be different. Expert witnesses, 30 B6 witnesses, pose their own challenges. Technology changes all the time. So there's always something more to learn. So I think the good news is that we won't have to feel like a novice for long. But at the same time, all of us have something more to learn, something more to apply, and something more in terms of skills that we can own and situations that we can prepare for and deal with.
Marsi Mangan:So you just get a lot better at responding quickly and in the moment and knowing that it's going to turn out okay. That's right. So the reason you know so much about depositions, well, one of them, is that you have recently taken over as the author of one of our foundational classics called The Effective Deposition. And people who have taken our deposition skills courses know that they have this one on their bookshelves because they got it as their textbook. The original author is Peter Toll Hoffman, and he has retired from updating the book. He was the original author, and I think it's, gosh, I think it's like 50 years old. It's an old book. And so you were selected as his successor. What can you tell us is new in the sixth edition that is different from the last time it was published, which was 2018?
Carl Chamberlin:Practically everything. But let me put that a little bit differently. The sixth edition retains all of the wisdom of the fifth edition. Um, but it adds to it, it updates it so that you really have everything that you need to take and defend depositions in 2023 and and beyond. And, you know, I I do have to say that Peter did an amazing job uh with those five editions. And uh there's just so much great information that I used in taking depositions and in teaching depositions as well. So it uh really a terrific accumulation of knowledge and strategy that we're just trying to kind of update and build on. And so we've been able to do that, right? So every chapter now has been updated in terms of changes in technology uh and remote depositions and changes in the law. There's a new chapter on remote depositions uh specifically. It addresses um new strategies that are occurring in uh taking depositions in terms of preparing witnesses and doing follow-up questions. There's um updated uh our conception of the funnel method that we were discussing that accounts actually for all of the questions that you might ask at a deposition. There's new chapters on, or a new chapter on um uh dealing with prototype witnesses, the forgetful witness, the evasive witness, the combative witness, the lying witness. There's updated and expanded examples of questions for the skills that we're discussing. There's a checklist at the end of most chapters, all the skills chapters, that gives you a summary of all the different skills and strategies and techniques. And we provide links and um a barcode so that the reader has access to NITA's repository of videos showing these skills, which is worth the cost of the book uh in and of itself. So we really try to think, you know, what would what does the newer attorney really need to know? And what would be helpful for the veteran attorney who has been taking a hundred depositions, but still, you know, might not be familiar with a particular area or wants to brush up uh on some things. And I have to emphasize that this is not just you. Know, are depositions according to Carl. It's built upon the accumulated knowledge of outstanding attorneys from all over the country who've done tens of thousands of depositions, which I've just been able to have the opportunity to assemble through my own kind of lens and put something that is accessible and helpful out there for today's litigator.
Marsi Mangan:Well, it was an awesome undertaking. I know that you were standing on the shoulders of a giant. And I have read the book, and I I actually read the fifth edition. I was the uh the managing editor for that book. So I was the last editor that worked with um Mr. Hoffman before he retired. It sounds like you have created uh an all-inclusive book. I love the idea that there are now demonstration videos in it, and it sounds very responsive to all the needs of the modern trial lawyer. So the book will come out this fall. Um, this episode is dropping in October, and it should be in warehouses right around the time that you are listening to this. So thank you very much for taking that on, Carl. I want to move on to the most serious questions of the day, which are our sign-off questions. What books are on your nightstand?
Carl Chamberlin:Oh, okay. Um, well, the effect of deposition, of course, right? It should be on every nightstand. Um, what else do I have on my nightstand? Um, I have I actually have the Bible on my nightstand. And I have uh you know, my reading is um I like sports. So actually a lot of my reading is going to be through sports feeds rather than you know the classic books. I have to, I have to admit that. So um uh a lot of my reading is gonna be, if not at work, it's gonna be on the phone looking at the latest sports feed. Oh so what is your favorite sport? What do you follow? Uh whoever's winning at the time. No, I'm kidding. So I, you know, I'm from the San Francisco Bay Area, so uh, you know, certainly the Warriors and um uh uh the 49ers, those are gonna be my my two staples. Um Stanford, if they're doing well. No, I'm kidding, Stanford will always uh find a fan in me. And uh the A's or the Giants, depending, you know, I grew up in Oakland when the A's arrived, and so I was very much an A's fan. And then I was also growing up with Willie Mays and Willie McCovey, so I was very much a Giants fan, and that has continued. So I I must say that I'm a continued fan of both of those teams.
Marsi Mangan:Okay. Well, then I think that your answer informs the next question's answer, which is what do you like to what are what have you been watching on TV? I'm gonna guess some sports, huh? Well, that's true.
Carl Chamberlin:I yeah, I I do like sports. Um so I will watch that. Uh the show TV shows? Well, the shows that I would watch are largely on hiatus at this point of time. Um, although there is one thing that we did binge watch actually as a family, and that's the Lincoln Lawyer series on Netflix, which I have to say, I have to say, uh is actually, you know, it has some fairly realistic courtroom scenes, relatively speaking. I mean, you know, the situations are kind of uh extreme and the characters are exaggerated. But in terms of the nuts and bolts of what you see happening in the courtroom, um, relatively speaking, relative to other portrayals that we see on TV and and the movies, it's pretty good. And it's also entertaining.
Marsi Mangan:So it is entertaining.
Carl Chamberlin:Yeah.
Marsi Mangan:Um, that show is uh popular at NITA. Some of us uh say that could never happen. Um but it's it is entertaining. It's just it's there to entertain us.
Carl Chamberlin:Yes.
Marsi Mangan:All right. Well, Carl, this was a really substantive conversation. Thank you so much for joining me to share all of these great tips about how to kick off your deposition. And I hope you'll come back and we can keep this conversation going with some other depot tips.
Carl Chamberlin:Well, thank you so much, uh, Marcy and and everyone there at NITA for having me on the podcast. You know, um, I've so enjoyed listening to your other guests, many of whom I know and respect very much. And I'm always learning something along with your great audience. So it's an honor. It's been a pleasure, and yeah, I I would love to be a guest again.
Marsi Mangan:All right, it's a date.
Carl Chamberlin:Thank you.
Marsi Mangan:Thanks, Carl. So, whether this was your first listen or a repeat, I hope you picked up some new insights that will guide your next deposition. And if you just can't get enough of all things deposition, please check the show notes for a link to the book, The Effective Deposition, as revised by Carl Chamberlain. Thank you so much for supporting May the Record Reflect. I look forward to catching up with you in January, where I will be speaking with NITA program director Jean Tanaka about expert testimony, and you will not want to miss it. Until then, happy holidays, happy 2026, and of course, happy lawyering. May the Record Reflect is a NITA Studio 71 production. NATA, we are advocacy enhanced, mentorship reimagined. Welcome to the community.