Early in the case, analyze and determine who you want to depose and who the other side will want to depose. Identify party witnesses and independent witnesses. Determine the order or sequence in which you want to depose parties and witnesses. Think in terms of “waves” of depositions. First wave of depositions, second wave of deposition, etc. In the first wave of deponents, determine the sequence of those witnesses. For example, first the plaintiff, then his mother, then his father, then witnesses A, B, and C. Then determine the sequence of the second wave of deponents. For example, EMT, ER physician, treating physician. Keep in mind that some deposition witnesses will testify about liability and damage issues. I like to call for the depositions of the first wave of deponents in my initial letter to opposing counsel which usually contains my discovery requests of interrogatories and document requests. Establish the order and sequence of who to depose that is best for your case.
Analyze and determine the purpose of each deposition before you take it. Each deposition is a piece of the jigsaw puzzle for your case. You need to try to use each deposition to establish your case. The purpose of one deposition may be different from the purpose of another deposition. In general, however, there are at least three purposes of every deposition which are: (1) analyzing the individual as a potential witness at trial; (2) obtaining facts, documents, and identify other witnesses from the deposition; and (3) locking the deponent into his/her testimony so that you can use that testimony as a building block for your case; and if the deponent changes the testimony at trial, you can use the deposition to impeach the reliability/credibility of the deponent.
Analyze and determine not only the sequence of deponents but when to take the deposition of a particular deponent. You may need to accumulate documentation from various sources before taking a particular deposition; you may not need documentation before another deposition. Do you want to take depositions early in the life of the case, which adds expense to the case; or do you want to wait toward the middle or end of the discovery period to take depositions, which is often times a factor in when to mediate a case and try to settle.
Depending on the case, use of exhibits in depositions can help or be a detriment in a deposition. Establishing facts through the use of exhibits with a deponent is often helpful in controlling a witness during a deposition, or finding out what the witness has to say about the information contained in the exhibit. Keep in mind, however, you might lose the element of surprise at trial by using exhibits at a deposition. Using lots of exhibits at a deposition sometimes makes the deposition long and awkward. I suggest that if you are going to use exhibits during a deposition you need to have them organized, pre-marked, with copies for opposing counsel, and incorporated into your deposition strategy and written outline. This way, valuable time and momentum is not lost during the deposition.
Parties and their counsel are permitted to be in the deposition room during any deposition. Others may be permitted in the deposition room by agreement. Strategize as to who you want in the deposition room during a deposition and who you don’t want in the room at the deposition. I often times like to have my client or client representative present in a deposition room in order to keep the deponent “more honest” with me during my questions. There are other reasons for having certain people present during a deposition such as “facing the accused,” having more knowledge about the subject matter than the deponent, etc.
Determine whether you want to, or need to, take the deposition of a co-defendant or a co-defendant’s supporting witnesses. Often times, it is better to speak to the co-defendant or co-defendant’s supporting witnesses without taking his/her deposition. That way, you will get information, documentation, and witnesses without providing such information to the other side; however, it will most likely not be “under oath” or in a deposition format that you can use at trial if you need to, for one reason or another. Be aware of the “draw backs” of such procedures, such as cross-examination in front of a jury that the witness spoke “voluntarily” with defense counsel but not to plaintiff’s counsel.
Not all witnesses need to be deposed. Some witnesses you can speak with at an informal setting with the use of notes only. From some witnesses, you may want to take a handwritten statement that is signed by the witness. Other witnesses you may want to tape-record. Some witnesses you may want to videotape. Some witnesses you may not want to talk to at all. Some witnesses you may need to depose.
Videotaping depositions is permitted pursuant to state and federal rules. Videotaping depositions may also be done by agreement between counsel. If there is no agreement ahead of time, however, you need to comply with the applicable rules. Videotaping depositions is not all that expensive and can be very effective for settlement and trial purposes. If you are thinking about using a videotape deposition for the purpose of trial, however, you need to prepare as if it were the day of trial. Your questions need to be clear and precise, just the way you would want them in front of a jury. (The same is applicable for all depositions, but particular attention needs to be given during a videotaped deposition.)
Preparation, preparation, preparation. Do not take a deposition by the seat of your pants. Set aside enough time to adequately prepare for taking a deposition. My rule of thumb is that I put twice as much time into preparation for taking a deposition as I take during the deposition. In other words, if the deposition is going to be approximately 3 hours long, I anticipate my preparation time to be approximately 6 hours. (Such is life!)
First, I like to obtain documents through requests for production of documents and other discovery means before I take a deposition. In personal injury cases, it is essential to get the medical records and have the medical records reviewed, summarized, analyzed, and organized before taking the plaintiff’s deposition. I have the medical records, in a 3-ring binder, all Bates stamped, with a summary of those medical records, and the most important medical records for my case, well organized before the deposition. The same is true for other documents, including employment, workers’ compensation, disability, DES, police reports, ambulance reports, witness statements, etc.
I then go through the entire file and literally put my finger prints on every piece of paper in the file to review before the deposition, including pleadings, correspondence, notes, etc.
Once I have accumulated all the documents and reviewed them, I begin to put together a strategy as to how I’m going to conduct the deposition in light of the purpose of the deposition.
I type out a deposition outline, which contains references to deposition exhibits, interrogatories, and anything else I’m going to use in the deposition. The outline must be capable of being used fluidly throughout the deposition, just like a Supreme Court oral argument outline before the Court.
Determine what you want to establish during the deposition, whether it is one or multiple points.
Think about what other aids you may need during the deposition such as a laptop, overhead protector, videotape, treatise, etc. and have them readily set up and available in the deposition room in order not to waste time and momentum.
Go through the 35 pointers below with your client, and describe the process and procedure of a deposition:
1. The deposition is the most important day in life of lawsuit except for trial day.
2. There are 3 purposes for a deposition:
3. Don’t volunteer information; limit answers to questions asked; “less is better.”
4. If you don’t understand a question, say so, don’t answer it.
5. If you can’t recall the answer to a question, say so, don’t be embarrassed or apologetic.
6. If you do not know the answer to a question, say so, don’t guess.
7. There are 5 steps to answering every deposition question:
8. Pausing before you answer allows you to control the pace of the deposition, allows you to formulate your answer; and allows your lawyer to respond to the question.
9. Be professional; no “loose talk” or “joking around.”
10. No narrative answers unless absolutely necessary.
11. If a question is not “fair,” say so.
12. If an attorney makes an objection, stop “on a dime,” and listen and learn from the objection.
13. Don’t help opposing counsel – he/she is not your friend, and you are not being deposed to help the other side.
14. Be aware of “body language” which may present “signals” to you.
15. Remain in control of the deposition – “control over disclosure.”
16. Don’t explain your answer unless:
17. Do not tell “all you know;” lawyers are like sharks, and your words are their chum.
18. If you want a break during the deposition, ask for one.
19. Although you will have an opportunity to review your deposition and make any corrections needed, “get-it right today.”
20. Be careful of questions regarding time, distance, dates, people and other similar questions.
21. Review all documents shown to you very carefully before starting your answer.
22. Do not mention documents, dates, or people unless asked.
23. Take as long as you need after a question before you answer. The transcript does not show any break in time.
24. Remember, anything you look at in preparation for your deposition (unless it is privileged) may be discoverable, including your personal notes, diaries, notations, etc.
25. Let your attorney review your file before the deposition.
26. Bring your entire file with you (if you have one) to the deposition.
27. Stay in control of your professional demeanor. Do not let the opposing attorney get you angry, excited, or distracted.
28. Don’t “stick your neck out” and give an answer that you “think” is the right answer. The opposing attorney will chop your neck off at the trial.
29. Don’t let the attorney “bully you” or “control you”. You remain in control of the deposition.
30. If the attorney taking the deposition reads you something from a document, ask to see the document before answering the question.
31. Beware of a question that begins, “Would it be fair to say…”, or any similar attempt to ask you to accept the attorney’s characterization of your testimony. Stick to your own description.
32. The preliminary statement by the questioning attorney will probably be contrary to all the rules set forth above, but remember “when your guard goes down, your mouth opens up.”
33. Each word you say in a deposition gives away something that the opposing party did not previously know. Each word you use is the equivalent of $1.00 given to the other side.
34. Understand what is relevant for a deposition, versus what is relevant for trial.
35. You will do fine, and I will be there to help you.
Inform the witness that he/she is not your witness or the other side’s witness. The witness is independent and is being deposed to tell the truth and to tell what he/she knows about the subject matter of the case. Tell the witness not to be embarrassed, that you have already talked with the witness before the deposition. Be clear with the witness that you do not represent the witness.
Arrive early at the deposition and set up with outline and exhibits. Confirm with opposing counsel who is going to present in the deposition room before it begins. Introduce yourself to the stenographer and everyone else in the room and provide business cards if appropriate. Orient yourself at a comfortable location (with the best view). If you have a client representative or legal colleague with you, inform them of their roles in the deposition room, such as taking notes, or passing you notes and suggestions. Consider having a legal colleague or client representative take notes on a laptop.
Determine whether you want the deposition to be used in a motion for summary judgment, or whether it is a fact-finding deposition, or some combination thereof.
If your purpose is to use the deposition with a motion for summary judgment, then you may want to lead the witness with questions and documents. Use leading questions that are tightly crafted so that you get clean and clear answers that you can use in a motion for summary judgment. If on the other hand, you are on fact-finding mission, then ask open ended questions or direct questions that allow the deponent to “tell you the story” from his/her point of view. In the former type deposition, you want to control the deposition, control the witness, and control the answers to questions. Whereas in the latter, you want to give the deponent “the floor” to explain and describe every nuance so that there are no surprises at trial.
In defending, I often times like to start off the deposition by asking questions about pre-existing medical conditions that are documented in the medical records; pre-existing employment problems documented in the employment records; subsequent and unrelated medical problems documented in medical records; and subsequent and unrelated employment problems documented in the employment records. This allows me to establish control of the deposition and it allows me to test the deponents memory, attitude, and it allows me to demonstrate to the deponent that I am maybe more knowledgeable about medical and employment matters than the deponent can recall. In other words, it establishes my creditability with the deponent.
A plaintiff ordinarily is “chomping at the bit” to tell me as a defense lawyer why my client is at fault and responsible; and how badly he/she has been damaged by my client’s conduct or actions. Often times, I hold off on allowing the plaintiff to tell me about the liability and damage story until after I have established control of the deposition as set forth above.
If a deponent is argumentative or evasive, be patient and persistent. Double back and ask the question again. Ask the stenographer to read the question again.
Be polite, be professional, be courteous, but be determined and patient.
Follow-up the deponent’s answers with additional questions based on those answers. Don’t be wedded to your outline.
Think of the deposition questions as “hiking into canyons.” If an answer opens up another canyon, hike in until you can go no further, and then start going down another canyon until you can go no further.
I am not saying to ask about irrelevant and immaterial information. Have a game plan and know what you’re doing and where you’re going with each canyon that you pursue.
Objections to deposition questions by opposing counsel should be limited to the form of the question or privilege. Speaking objections are not permitted. Arguments and pontificating are not permitted by opposing counsel.
If an objection to form is registered, you can either reformat the question or have the deponent answer the question duly noting the objection to the form.
If opposing counsel becomes obstructive, “take the high road” and respond professionally on the record. If opposing counsel’s unreasonable objections continue, I create a record short and sweet for the trial judge.
If you request documents to be produced during a deposition, it is wise to follow-up those requests with a written letter to opposing counsel citing page and line in the deposition where the request was made. You can also ask the stenographer to mark the request in the deposition.
I cannot improve on the deposition guidelines set forth below.
See NH Litigation Guidelines, Depositions, NHBA, nhbar.org/legal-links/NH-Practice-Guidelines.asp:
See also, Code of Pretrial and Trial Conduct, ACTL, http://www.actl.com:
The usual and customary practice in New Hampshire for civil depositions is that the person taking the deposition pays for the stenographer; schedules the stenographer, and provides a free copy of the deposition and deposition exhibits to counsel for the deponent, whether a party or witness.
Know what “usual stipulations” are – generally that phrase in New Hampshire means that all objections except as to form are reserved; and if a signature to a deposition does not occur within a specified time (usually 30 days), then the signature is waived and the deposition testimony stands and may be used at trial.
Correcting a deposition transcript on an errata sheet poses unique issues. A deposition transcript should always be reviewed by the attorney and the deponent, and corrections to the deposition testimony can and should be made on important matters. However, keep in mind that the original testimony and the corrected deposition testimony both may be used at trial. Since the deponent already testified under oath during the deposition, corrections may be used to impeach the deponents reliability or credibility. In other words, a lot of corrections taint the reliability and credibility of the deponent, as does a significant correction, such as changing the answer from one thing to another (i.e. the light was green verses the light was yellow).
Know how to use deposition testimony at trial – which is another whole topic.
* Charles P. Bauer licensed to practice in New Hampshire.