Witnesses

News & Analysis as of

The Judge Next Door

Corning Optical Communications Wireless Ltd. v. Solid, Inc. et al., 5:14-cv-03750 (Magistrate Paul Grewal) (May 13, 2015) - It is common to have discovery disputes in patent litigation, and parties often resolve such...more

Union Represented Employee Not Entitled To Co-Worker Witness During Investigatory Interview, NLRB Rules

The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed. Many of the recent Board...more

12 Must-Do Tasks Before Cross-Examination

Few attorneys have the time or budget to do detailed preparation for cross-examination of every witness. And even if the budget makes it possible, time spent on other aspects of trial preparation will force counsel to take...more

Sanity in Florida? New Ruling Sheds Some Light on the Business Records Exception

On May 6, 2015, Florida's Third District Court of Appeal finally weighed in on an important tactic relied on by servicers in residential foreclosure actions. In Bank of America, N.A. v. Delgado, No. 3D13-910 (Fla. 3d DCA May...more

Deposition Practice Tips: PTAB Guidance for Dealing With Suspected Witness Coaching

Question: What can you do when you suspect that opposing counsel engaged in inappropriate witness coaching during a PTAB deposition? Answer: Ask the witness about the suspected off-the-record discussions and call the Board...more

Use Checklists to Avoid a Will Dispute

One of the easiest steps that an estate planning attorney can take to try to prevent a will that he drafted from being challenged is to have the witnesses to the will utilize a checklist in order to create a documented record...more

Depositions: “Invoking the Rule” To Exclude Persons From Attending Depositions

Section 90.616, Florida Statutes, sets forth the procedure for excluding certain witnesses from a proceeding, referred to as “invoking the rule,” so that one witness does not potentially color the testimony of other...more

Do Witness Interview Memoranda Deserve Opinion or Merely Fact Work Product Protection?: Part II

Last week's Privilege Point discussed Lance Armstrong's unsuccessful attempt to discover witness interview memoranda government agents prepared during their civil investigation of Armstrong's misdeeds. United States ex rel....more

WHAT’S GOOD FOR THE GOOSE IS GOOD FOR THE GANDER – Parties Seeking To Depose Foreign-Based Witnesses In The U.S. Should Be...

Parties suing in the United States with foreign-based witnesses take heed, as you may find your foreign-based witnesses traveling to the United States for depositions. On February 12, 2015, Magistrate Judge Paul Grewal...more

5 Tips for Preparing Your Witness for Video Deposition

Preparing your witness for a video deposition has a few more wrinkles—or more accurately, the ironing out of a few more wrinkles—than a deposition recorded only by stenography....more

Who You Gonna Call? The Board!

The PTAB issued an order providing guidance for responding to potential witness coaching during a deposition recess. Cases IPR2014-00411 and IPR2014-00434 – FLIR Systems, Inc. v. Leak Surveys, Inc. - In an inter...more

Swearing in Your Witness Abroad

When taking a deposition in the United States, it is fairly common for the witness to be sworn in by the court reporter, as nearly all court reporters are notaries. However, a U.S. notary’s powers do not extend beyond the...more

Never Let Them See You Coming—Keys to Setting Up Witnesses Interviews In An Internal Investigation

“So you are the great lawyer I’ve been told about!  But, you are so young!  I was expecting an old lawyer.” With those words, the silver-haired senior-level executive of the customs broker I was investigating for bribery let...more

An American Attorney in Canada (Part 3: Letters of Request in Patent Litigation)

A recent Ontario court decision (Arctic Cat Inc. et al. v. Peter Watson, 2014 ONSC 6874 (CanLII)) dealt with a foreign letter of request, or “letter rogatory” in a cross-border patent infringement case involving the invention...more

American Arbitration Association – Consumer Arbitration Rules – Who Pays for the Court Reporter?

Even for binding arbitrations, a record of the proceedings may be important for the attorneys and the arbitrator, especially when there are many witnesses and the subject matter is complex. Having computers or tablets with...more

Make a Plan for Each Witness

Before you prepare a witness for trial, you should know precisely what you expect to accomplish through that witness. In other words, have a plan. Your trial notebook should have a section for each witness that...more

Internal investigations and the Importance of Witness Interviews

Everyone claims to know how to conduct an internal investigation. Given the government’s reliance on internal investigations, law firms have beefed up their internal investigation services. Inevitably, the quality of internal...more

Untimely Disclosure of Witnesses and Evidence in Colorado

A common litigation tactic that lawyers are all too familiar with is the untimely disclosure of witnesses and exhibits on the eve of trial. After months, or even years, of litigation to prepare a case for trial, one party...more

USPTO – Great Information for Court Reporters and Attorneys – Swearing in a Witness

As court reporters in the patent and trademark litigation world, we are often asked to report depositions in foreign countries. One of the requests that frequently comes up is, who is going to swear in the witness? Certain...more

Business Court Resolves A Trio Of Discovery Issues

Three interesting discovery issues were resolved last week by Judge Bledsoe's Order in Gay v. Peoples Bank. First, can you obtain in discovery in a class action the fee arrangement between the plaintiff and his lawyers? ...more

The Pros and Cons of Client Proffer Letters: Should You Talk to the Government?

During white collar criminal investigations, federal prosecutors may try to use client proffer letters (also known as client proffer agreements) to get information from individuals who are under investigation, or from...more

How to prepare to cross-examine an expert witness

Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used...more

Assessing Witness Credibility—Is it Really Just “Opinion”?

I was challenged recently by a participant during an in-depth webinar on conducting investigations of employee misconduct that I was leading. As I discussed how to assess witness credibility—one of the most difficult...more

Some Observations on Observations

In Hayward Industries, Inc. v. Pentainer Water Pool and Spa, Inc., IPR2013-00285, Paper 31, IPR2013-00287, Paper 31 (July 3, 2014), the Board provided some guidance on observations on cross-examination, answering the question...more

Order out of chaos

The strategy and skills behind witness order and scheduling at trial - The defense was putting on its case. The lawyer, a trial veteran, was good. But not great with time estimates. Adding to the pressure: a trial...more

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