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[SPEAKER_00]: This is the 10,000 depositions later podcast, episode 173, I'm Jim Guherty.
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[SPEAKER_00]: Today's topic, improper preliminary instructions or ground rules, however you'd like to call them.
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[SPEAKER_00]: Welcome everybody, I hope you're having a great week so far, so let's dig in.
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[SPEAKER_00]: Do you ever object to the preliminary instructions or ground rules, however you might like to describe them?
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[SPEAKER_00]: that examining lawyers often go through with your deponence before they begin the actual questioning.
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[SPEAKER_00]: I don't think I've ever heard a lawyer object to them.
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[SPEAKER_00]: But these preliminary instructions can be quite pernicious, destructive, because they are intended to bind and restrict your witness.
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[SPEAKER_00]: So they should, depending on the instruction, be something that draws objections when appropriate.
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[SPEAKER_00]: And the objection can be very simple.
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[SPEAKER_00]: Improper instruction, either that by itself or with a brief explanation as needed.
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[SPEAKER_00]: Remember that rule 30 of the federal rules and its state equivalence, says that you must timely object to any aspect of the deposition at the time of the examination.
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[SPEAKER_00]: And the preliminary instructions are certainly an aspect of the depositions and a very important one.
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[SPEAKER_00]: So you've obviously been in a deposition, where you started to feel a bit uncomfortable, perhaps, with some of the preliminary ground rules that the examining lawyer is laying out.
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[SPEAKER_00]: Some of them might even strike you intuitively, as inappropriate in some way, but you're not quite sure what to do with them.
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[SPEAKER_00]: It's not really a form objection, because they're just often declarative statements by the lawyer in response to which the lawyer asks the witness to agree.
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[SPEAKER_00]: So perhaps not form, perhaps not leading, not really anything else that we classically think of when questions are actually being asked.
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[SPEAKER_00]: But these preliminary instructions are often intended to lay a trap for your witness.
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[SPEAKER_00]: Now, what's an example?
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[SPEAKER_00]: Well, here's one.
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[SPEAKER_00]: Ms. Edmunds, also, I don't want you to speculate or simply tell me your opinions about what happened.
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[SPEAKER_00]: I just want you to testify today about facts that you personally know to be true.
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[SPEAKER_00]: Can we agree on that?
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[SPEAKER_00]: Witness says, yes, yes, without much thought.
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[SPEAKER_00]: Because it seems reasonable enough.
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[SPEAKER_00]: But the problem is, is that when we share what we know, it's inevitably a mix of actual facts and opinion.
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[SPEAKER_00]: Because what we know is based on what we have collectively perceived that allows us to form a firm belief about what the facts are.
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[SPEAKER_00]: So if I agree as a witness to limit my story, my testimony,
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[SPEAKER_00]: to what we might call a pure bedrock layer of fact.
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[SPEAKER_00]: It's going to sharply limit what I'm able to say.
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[SPEAKER_00]: So this kind of instruction, if taken to heart by a well-meaning deponent, can do some real damage to your case as your witness doodifully with holds information that they can and should include.
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[SPEAKER_00]: More so, if, during the deposition, the examining lawyer continues to press this point, such as, remember, Ms. Edmunds, you agreed not to speculate or offer your opinion, please limit your answers to what you know to be a fact and not your opinion.
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[SPEAKER_00]: Well, here's an example of what a witness might say that necessarily blends fact and opinion.
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[SPEAKER_00]: Ms. Edmund says, he was really driving too fast for the conditions.
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[SPEAKER_00]: Well, a witness can't report what they actually perceived, what I would call the full gistalt of speed, road surface visibility, traffic weather, without synthesizing it, into that evaluative conclusion.
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[SPEAKER_00]: So too fast for conditions, isn't raw data.
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[SPEAKER_00]: It's a rational judgment formed from multiple observations.
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[SPEAKER_00]: And it's really inseparable from the testimony about what happened.
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[SPEAKER_00]: So here, as in most accounts of what we, quote unquote, no, if you strip out opinion, you don't get pure fact.
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[SPEAKER_00]: You get an incomplete and arguably less accurate account of what the witness actually observed.
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[SPEAKER_00]: Here's another example.
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[SPEAKER_00]: Ms. Edmund says, well, he seemed angry when he said it.
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[SPEAKER_00]: Now, this witness perceived tone of voice, facial expression, word choice, maybe body language.
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[SPEAKER_00]: And then in their mind, assemble those into the concept of anger.
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[SPEAKER_00]: And so they can't report the discrete inputs with the same accuracy as that synthesized conclusion.
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[SPEAKER_00]: because what they actually experienced was the integrated perception.
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[SPEAKER_00]: The opinion, in other words, is the reported fact.
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[SPEAKER_00]: And that really makes the point.
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[SPEAKER_00]: There are precious few things we know that are pure bedrock layers of uninterpreted sensory observation.
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[SPEAKER_00]: Facts that don't involve those blended layers of perception, opinion, and judgment.
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[SPEAKER_00]: And so if you're witness agrees,
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[SPEAKER_00]: as a result of that preliminary instruction, not to offer testimony that necessarily includes opinions.
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[SPEAKER_00]: There is likely very little about which they're going to be able to testify in a coherent way, because in reality, observation and this categorization are fused.
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[SPEAKER_00]: Now, evidence law handles this sensibly, this issue, through federal rule of evidence,
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[SPEAKER_00]: which allows lay opinion testimony when it's rationally based on the witness's perception.
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[SPEAKER_00]: It would be otherwise difficult to convey through raw factual, let's call it decomposition or the unbundling of perception and judgment from that bedrock layer of fact.
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[SPEAKER_00]: And so rule 701 in its state equivalence, acknowledge this point, made by some philosophers,
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[SPEAKER_00]: that some facts can only be accurately reported in a form that includes what we would otherwise call opinion.
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[SPEAKER_00]: So what to do with instructions by an examining lawyer that strike you as inappropriate?
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[SPEAKER_00]: Again, the correct objection is simply improper instruction, either on its own or with a short explanation, such as council, you can ask your questions and the witness will answer truthfully and to the best of their ability.
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[SPEAKER_00]: but they're entitled to testify as to what they observed, what they were called, and their best estimates and impressions, not just things they can certify as an absolute fact.
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[SPEAKER_00]: So please don't instruct the witness to limit their own testimony, ask your questions, and we can go from there.
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[SPEAKER_00]: That's just a sample.
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[SPEAKER_00]: It could be shorter, could be a little bit longer, to point as you've just got to get that objection on the record, possibly depending on the situation with an explanation of that.
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[SPEAKER_00]: And perhaps some dialogue between you
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[SPEAKER_00]: to the extent of conferral is needed for possible motion practice then or later that will involve the court.
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[SPEAKER_00]: As with many issues that are likely to surface during a deposition, this is one of those that it's important to address during your prep sessions, so that your witness doesn't get tripped up and self-limit, omitting a great deal of relevant, helpful testimony.
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[SPEAKER_00]: So the bottom line here is that examining lawyers don't get to pre-instruct deponents to self-sensor their answers or to filter what the witness says through the lawyer's own categories of fact versus what the witness thinks.
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[SPEAKER_00]: The driver was driving too fast for conditions or he seemed angry when he said it.
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[SPEAKER_00]: Those are both perfectly proper deposition testimonies.
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[SPEAKER_00]: But the instruction that we talked about invites opponents to refuse to give that kind of answer, which can obviously distort the record and actually result in the suppression, the self-limitation of discoverable information.
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[SPEAKER_00]: That's why it's so harmful.
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[SPEAKER_00]: Again, examiners don't get to pre-program your opponents' answers.
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[SPEAKER_00]: If you're examining lawyer wants to establish that certain answers are based on personal knowledge versus opinion, the correct way to do that, the correct tool is a follow-up question, not a blanket up front instruction.
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[SPEAKER_00]: This kind of instruction can mislead witnesses again to think that they should withhold responsive testimony.
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[SPEAKER_00]: Which in a way, if you think about it, really edges toward coaching witnesses in the opposite direction, leading to an incomplete record.
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[SPEAKER_00]: What's another example of a very common preliminary instruction that you might want to object to?
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[SPEAKER_00]: Here's one.
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[SPEAKER_00]: Ms. Edmunds, will you agree that if you answer a question that we can all assume that you understood it?
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[SPEAKER_00]: Very, very common.
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[SPEAKER_00]: I'm sure you've heard that a thousand times.
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[SPEAKER_00]: But if you think about it, the fact that a witness has answered a question typically means they understood it, certainly, but not always.
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[SPEAKER_00]: And to illustrate how many times have you heard in a deposition, the examining lawyer after the deponent has answered the question, say to the witness, that's not what I was asking you.
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[SPEAKER_00]: So this instruction or agreement is really designed to prevent the witness from later clarifying questions that they misunderstood because if they agree at the outset of the deposition, they've sworn under oath that answering means understanding.
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[SPEAKER_00]: That's what happens when the opponent answers, but actually misunderstood.
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[SPEAKER_00]: While the agreement doesn't make the answer correct, or prevent the witness from later explaining it, it's not an absolute bar to clarification later.
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[SPEAKER_00]: But what it does do, though, is seal the, I didn't understand the question, escape hatch at trial or in a later proceeding.
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[SPEAKER_00]: At least as a clean explanation for another answer by the witness on the same issue that varies from their original one.
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[SPEAKER_00]: So the witness can still say they misunderstood, but now they're really contradicting their own prior agreement on the record, which the examinant lawyer can exploit.
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[SPEAKER_00]: And it can also shift issues of credibility.
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[SPEAKER_00]: without that kind of agreement at the outset.
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[SPEAKER_00]: A witness who gives a damaging answer can somewhat plausibly, later say, I misunderstood your question.
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[SPEAKER_00]: But with the instruction and agreement, that explanation starts to look evasive or coached.
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[SPEAKER_00]: So again, this doesn't stop the witness from correcting the record under rule 30E, a witness can still make changes.
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[SPEAKER_00]: but any later changes, following that kind of agreement during the preliminary session of the deposition, now carries the additional baggage of that basic admission and agreement.
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[SPEAKER_00]: So what's the right way to deal with it again is very simple.
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[SPEAKER_00]: The objection is improper instruction.
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[SPEAKER_00]: and in many situations that may be all you need to say, you can add to it if you want to be more precise because simply stating the basis for the objection on the record, the objection itself improper instruction, and then a brief explanation isn't coaching to the witness.
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[SPEAKER_00]: It's not coaching because it doesn't suggest a specific answer to a specific question.
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[SPEAKER_00]: So again, the objection could be improper instruction,
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[SPEAKER_00]: Now under Rule 32 of the Federal Rules and its state equivalents, objections of course are to be stated concisely in a non-argumentative and non-suggestive manner.
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[SPEAKER_00]: So keep it short, but the specific wording of your objection.
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[SPEAKER_00]: as to improper instructions, really matters less than simply getting it clearly on the record.
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[SPEAKER_00]: And that objection preserves your right to ask your judge, hearing officer, arbitrator, whoever it is, to exclude the preliminary instruction in any question that would use the instruction and your witnesses' response against them.
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[SPEAKER_00]: Remember that rule 30C2, that's the main deposition rule in federal court and its state equivalents in most jurisdictions,
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[SPEAKER_00]: always require you to timely object to any aspect of the deposition at the time the deposition takes place and obviously instructions are an aspect of your deposition.
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[SPEAKER_00]: Same thing with rule 32 specifically rule 32 D3B that's use of deposition testimony in a proceeding.
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[SPEAKER_00]: has a subsection titled objection to an error or a regularity.
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[SPEAKER_00]: And that subsection also requires timely objections to any errors or irregularities, or they are waived.
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[SPEAKER_00]: Now, is an objectionable preliminary instruction?
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[SPEAKER_00]: Is that an error or irregularity within the meaning of rule 32 D3B?
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[SPEAKER_00]: Well, because those terms are both very broad, intentionally so, and because they're not defined, it's best to treat the preliminary instructions, defective ones, as errors or irregularity and best to make a timely objection.
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[SPEAKER_00]: You know, you hear us say this often, interesting stuff, isn't it?
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[SPEAKER_00]: As you know, we cover every facet of taking and defending depositions, and you'll find insights like today's topic, absolutely nowhere else.
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[SPEAKER_00]: It's because of our record-breaking deposition experience, our deep research, and our focus exclusively on deposition strategies and tactics, depositions alone, and nothing else.
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[SPEAKER_00]: Those preliminary instructions can play a key role in boxing in a witness at a later trial or final hearing or other evidentiary setting.
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[SPEAKER_00]: And they can escape our notice.
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[SPEAKER_00]: The instructions are usually rattled off as sort of a matter of course when everyone's still getting settled in their chairs, but if they're not opposed, when appropriate, they can have an outsized impact on the testimony down the road.
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[SPEAKER_00]: Alright.
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[SPEAKER_00]: That's it for today.
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[SPEAKER_00]: As always, thank you so much for listening and be sure to check out the book on which this podcast is based.
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[SPEAKER_00]: 10,000 depositions later.
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[SPEAKER_00]: The premier litigation guide for superior deposition practice subtitled a user's guide and handbook on deposition tips, tactics, and strategies for civil, administrative, and arbitrative litigation.
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[SPEAKER_00]: Now,
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[SPEAKER_00]: and available on Amazon and everywhere else you get your books.
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[SPEAKER_00]: Thank you and we'll talk to you again soon.