This is part of a new Book Report series designed to introduce some of our favorite NITA publications. Some of the books we’ll write about are fresh off the press, while others are tried-and-true NITA favorites. For more book reports and information on our publications, check out our Publications page.
We are excited to present the 4th Edition of The Effective Deposition. In celebration of this release, we wanted to bring you a unique book report. We have asked both authors, David Malone and Peter Hoffman, to answer a few questions about their work with NITA, their thoughts on The Effective Deposition, and their current reading lists. Check out their answers below.
1. Tell us about how you became involved with NITA
David Malone (DM): I was a student at Boulder in 1979 and became addicted to improving my trial skills through training courses and trying cases. My team leader at that session, Bob Hanley, invited me the next spring to be his Assistant Tteam Leader at the Advanced Course in Florida, and we taught together for the next 15 years, until his death. That included the Boulder courses, the Oxford, England courses, and various courses around the country and in Canada. He was brilliant and innovative teacher and mentor to me, which is why this book has been dedicated to him in all its editions.
Peter Hoffman (PH): I attended the NITA National Program in Boulder as a student in 1975 (when it was three weeks long). I had been trying cases before then and winning most of them, but I had no idea of what I was doing in the courtroom. Attending NITA was like having the scales fall away from my eyes—I finally understood how to try a case. The experience converted me to the NITA approach and turned me into a NITA “junkie.” In approximately 1977, I received my first invitation to teach at NITA, the Mid-America Regional Program at the University of Kansas, and I jumped at the opportunity. As the years go by, I keep receiving more and more invitations to teach and I accept as many as I can. I love teaching advocacy skills, and it is always nice to have someone else cook your meals and make your bed. I have lost exact count, but I believe I have now taught in 400-500 programs in 30 some states and several foreign countries.
2. Why did you update Effective Deposition?
DM: It was time. I think that this Fourth Edition is actually the fifth version, because there was a revised second or third in there somewhere. Peter and I have continued learning about depositions as we teach, and we come to a point where we have to record our latest thinking to make it concrete and to share it with others who want to learn to use the wonderful tool of depositions more effectively. Getting information from people, sometimes against their will, and helping pe0o0ple be better witnesses are two skills that all lawyers should develop.
PH: To reflect changes in the Federal Rules of Civil Procedure and in the case law governing depositions. The strategies and practicalities of deposition practice also continue to change–for example the increasing use of video depositions–and we wanted to update the book to reflect these changes.
3. Can you give us a summary of Effective Deposition, in your own words? How would you describe it?
DM: The Effective Deposition is a book for people who don’t like law books but who love the practice of law. If you want string citations and legal history back to Lord Coke—oops, wrong book! If you want to know how to make your depositions work better, then we have the book for you. This book omits philosophy (except in the epistemology of the expert chapter), case rationales, close legal reasoning, and any extended analysis of case law except for Daubertand Kumho Tire; instead, it emphasizes how you can take and defend better depositions—where you sit, what you say, what the witness needs to think about, how to protect the record, how to ask a question, and when and how to make an objection that might actually be valid and not just pretentious puffery. For working trial attorneys, this book is closer to “Mechanics Illustrated” that it is to he Harvard Law Review.”
PH: The Effective Deposition is intended to be a handbook for lawyers beginning to take and defend depositions by serving as a practical guide to 1) the law governing depositions, 2) the “mechanics” of depositions, and 3) the strategies and tactical considerations that go into taking and defending depositions.
4. Who is your target audience? Who did you have in mind when writing and updating this book?
DM: My target audience was the working trial lawyer who needs more “how to” and less “let’s think lofty thoughts.” Peter and I may disagree a bit here, but older lawyers who have succeeded in their practices may need some substantial refreshing before they take an effective deposition again; younger lawyers get too little deposition training in law school, and often learn many bad habits at the feet of senior lawyers. This book is intended to help both.
PH: The book is designed for lawyers who are beginning to take and defend depositions and law students taking discovery courses and in clinics. The lawyers are usually one to five years out from graduation and have taken and/or defended zero to 25 or so depositions.
My benchmark in writing the book was my own experience in learning how to take and defend depositions. When I graduated from law school, I knew almost nothing about depositions, but learned how to take and defend the hard way—by making mistakes, hopefully not too many at my clients’ expense. I still wake up in the middle of the night in a cold sweat thinking about some of the mistakes I made back then. The book is designed to help new lawyers avoid those same mistakes and to help them sleep better in the future.
5. What was the hardest part of writing your book?
DM: Trying to evaluate, criticize, and improve our thinking as it was captured in earlier editions. Perhaps all authors have a tendency to accept their earlier thoughts as adequate and articulate; we wanted to rethink them, preserve what was valuable, and re-analyze and re-present what could and should be improved. The new Rule 30(b)(6) deposition chapter was especially challenging, because we expanded it from a page to a chapter, and we wanted it to provide clear instruction on how to take advantage of a much underused tool.
PH: The chapter on obtaining admissions. No other book on depositions that I know of deals with obtaining admissions, so I was working pretty much without a script on what to write. There was a good law review article that came out a number of years back, but it was merely the beginning of how to think about obtaining admissions. The chapter takes obtaining admission to the current state of knowledge about how to carry out what is often the most difficult part of most depositions.
6. What book are you reading now?
DM: As usual, I have about three going: I am slowly working my way through a new translation of The Iliad, which I am embarrassed to say I have never read before; I just finished Isaac Asimov’s Chronological History of Science, in part because I consult in many cases that require some (at least minimal) understanding of many different scientific fields and their interconnections; and in part because I love science. I have a spy-book in the bathroom in my office, and I am thinking about re-reading the Lonesome Dove set of four books, which I think is like poetry—I was unhappy for a week when I finished the last book. and there is a well-received by now little known book entitled Plainsong, by Kent Haruf, that really captured me and that deserves to be re-read. Haruf has two other novels, The Tie That Binds andWhere You Once Belonged that form an amazing trilogy with Plainsong.
PH: I am actually reading two books, alternating between them–Ted Guioia, Delta Blues (a history of the Delta blues) and Alan Furst, Mission to Paris (an espionage novel set in pre-WWII Paris and Germany).
7. What is your favorite book?
DM: Pillars of the Earth by Ken Follett is certainly one of my favorites, although the made-for-TV movie almost ruined the memory of the book. A series of Michener-style historical novels, by Edwin Rutherford, make me check every month to see if he has a new one out; these include Russka; London; Sarum; The Forest; and Princes of Ireland. All great reads. In a completely different vein, probably my favorite non-fiction book of all-time is Edward Tufte’s The Visual Display of Quantitative Information, which teaches anyone, especially courtroom lawyers, how to present mathematical and scientific concepts. Start with this book, work through to the fourth in the series—Beautiful Evidence—and you will have the advantage over any opposing lawyer in persuading and entertaining. (If you master both Tufte and Imwinkelreid’s Evidentiary Foundations you will not be bested in presenting demonstrative and illustrative evidence.)
PH: My younger daughter used to say after finishing a book “That’s the best book I’ve ever read.” I have to agree with her—the last book read is always the best or favorite book.
ISBN: 9781601561534 ∙ Pages: 565 ∙ Retail Price: $85.00
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