The Rules And Procedures Controlling Depositions Are Neither Technical Nor Complex.
Yet many lawyers either don’t understand these rules. And many lawyers who do understand the rules of the game are quick to take advantage of an adversary who does not.
This page is a cheat sheet that answers those terrible questions that tend to pop up in the middle of the deposition.
For the experienced attorney who may not need to review the entire article, I have put together a pdf checklist that you can download here.
Staying fresh and ready on the rules of the deposition outside of the deposition room will enable you to focus more attention on getting information from the witness while in the Courtroom.
Is A Deposition Just A Sworn Statement?
A Deposition is simply a compulsory sworn statement (by subpoena or Court Order), reduced to writing. Depositions are taken as part of the discovery process. Depositions are often taken near the end of the discovery process, when the attorney has the benefit of document disclosure and interrogatories to help prepare for the witnesses deposition.
The compulsory nature of a deposition means the witness does not have a choice in the matter. Every jurisdiction has rules that spell out the how and when the deposition will take place.
A simple sworn statement, on the other hand, is not compulsory. You are getting the witness to talk to you, outside of the confines of the rules of the Court. Think a witness interview where you just happen to have a court reporter along to notate the facts. Unlike a deposition, all you need is a willing witness and a court reporter to take an oral deposition statement.
Is The Deposition Set Up Correctly?
For the Deposition to be proper, make sure that:
1. The Witness is under subpoena
2. The other side has been given reasonable written notice. The Notice for the deposition must have 1. the time, 2. the place, and 3. The name and address of the person being deposed if know. Be sure to check your jurisdiction for local rules on what is reasonable notice and how you need to go about scheduling matters with opposing counsel, and
3. There is a court reporter to swear the witness under oath and reduce the oral testimony to writing.
Although formality aside, the parties could technically stipulate to the removal of the court reporter. And even the admissibility of the deposition absent the witness being sworn. Stipulations, however, take two to tango.
Who Can Attend The Deposition?
In civil cases, anybody can come.
Absent a protective order from the Court, experts, third parties, and even other witnesses can attend a deposition. Deposition is a civil procedure with open proceedings, just like trial. They are not, by default, closed to the public.
Most jurisdictions have more restrictive rules in Criminal Depositions. For example, Florida does not allow the criminal defendant to attend a deposition without permission from the Court.
“Any Third Party Can Attend A Civil Deposition, Even Potential Witnesses, Absent A Court Order Or Stipulated Agreement To The Contrary.”
However, unlike a trial, you cannot simply “invoke the rule” of sequestration to keep a witness out of the room.
Of course, most depositions take place in private offices or conference rooms. Therefore, most outsiders could be kept out of the deposition by the owner of the conference room. If a third party comes to a deposition, the attorney needs to look strategically at the situation.
The attorney could terminate the deposition and seek a protective order from the Judge.
Alternatively, the attorney could announce on the record that the third party witness is sitting in on the deposition, and use it to impeach both the deposition witness and the third party witness.
Likewise, if the third party attending the deposition is a newspaper reporter, the uncomfortablenes that the reporter makes the witness feel could be used to great tactical advantage.
Can I Depose A Witness Over The Telephone?
However, you will need to have a notary or a court reporter that is in the room with the witness.
That means if the court reporter is with you (and not in the remote location with the witness), then your witness will need to have a notary available to swear them in. According to the National Court Report Association only 18 states have any rules or regulations concerning telephonic depositions. These states require the witness to be sworn in while in the same room as the court reporter or a notary.
As for the other 32 states, the NCRA recommends that court reporters still do the same thing and not swear in a witness over the phone.
While technically the lawyers could stipulate to swearing the witness in over the phone, in this case you need three to tango (2 lawyers and a court report), and some Court reporters might feel it is a violation of their ethic to do so, and not take the deposition.
Can I Depose A Witness With Skype Or Mobile Videoconferencing
If you need to depose a witness remotely, skype or other mobile videoconferencing provides another option. Video conferencing (and recording) gives you the opportunity to examine the witness while viewing the witness visually. This also allows the recording of the witness so the Jury can see everything in the future.
However, with both telephonic and mobile video depositions you will need to have a plan for the reviewing and marking of exhibits. There are companies like e-depoze that have software packages that enable real time use of exhibits through i-pads and tablets.
What Questions Are Fair Game?
Before you enter a deposition you need to know what questioning is fair game, and what question is improper.
“Relevant Information Need Not Be Admissible At The Trial Of The Discovery Appears Reasonably Calculated To Lead To The Discovery Of Admissible Evidence”
Depositions are a discovery devise. If the question asked might reasonably lead to the discovery of admissible evidence, then the question is fair game!
Generally speaking, the rules of evidence generally limit the use of information at trial, not the acquisition of the information at deposition.
Defending The Deposition: How Do I Prepare My Witness?
If possible, you need to meet with your witness before the deposition. As an advocate, it is important that your witness is thoroughly prepared for the deposition. As a counselor (assuming the witness is your client) you want to help put your client at ease and feel comfortable about a scary event.
Every lawyer has his or her own “rules” that they give the client, but they all have pretty much say the same thing:
- Be short and sweet
- Be Honest
- Think before you answer
- Keep Calm and be respectful
So set your meeting with your client and explain to them what they will expect. Make sure any relevant affidavits, interrogatories, or documents produced by your client are available. Leave your client in the conference room and let him go over all the documents that he might be impeached with the next day. And go over the rules with your client.
Can I Seek A Protective Order?
If you are defending a deposition and you think the opposing attorney has crossed the line, you need to terminate the questioning and seek a protective order from the Judge assigned to the case.
However, the Judge will only grant your request for a protective order if you can show annoyance, embarrassment, oppression, or undue burden or expense on a party.
If you do move for a protective order and you lose, your client might be on the hook for costs, but only if your motion was unreasonable.
Note that at least one Federal Court Decision out of Alabama stated that excluding a witness from a deposition because the witness would be exposed to the deponent’s deposition testimony leading to collusion or testimony fabrication did not justify the granting of a protective Order.
Can I Instruct The Witness Not To Answer?
An attorney has no right to instruct a third party witness, especially an expert witness, to not answer a question. An attorney can instruct his or her own witness not to answer a question only on the basis of invoking a privilege.
What Are My Proper Objections?
There are only three proper objections in a deposition:
You can object to the relevancy of a line of questions. Sometimes, opposing counsel is just “badgering”the witness, or wasting time. You can object to the relevance of the question. But remember: relevancy at a deposition is anything that is reasonably calculated to lead to admissible evidence. That’s a pretty low standard!
You can object to the form of a question in deposition.
For certain form questions, if you do not objection at the deposition, it is waived at future hearings. So speak now, or forever hold your objection.
An Attorney objecting to the form of a question is asking the other attorney to clarify a specific point. Common examples of objections as to form include: lack of authentication, compound, asked and answered, ambiguous then object to the form of the question.
Leading is also an objection to form, but this does not apply to hostile witnesses. In most jurisdictions, you simply say the following: “Objection. Form”.
Other jurisdictions will want you to clarify the type of form objection, so you would say, “Objection. Form. Compound”. In any case, don’t be a goon and ramble speaking objections (see below).
Finally, you can object for privilege and help your client invoke the privilege. This is also the only time you can in anyway instruct your witness not to answer. Do so not by stating , “I am instructing my client to not answer!”, but by stating (or having your client state), “I am invoking my XX privilege. Be sure to check your State’s evidence rules for all privileges, but the two biggies are the 5th Amendment and the Attorney-Client privilege.
Even If I Can Objection, Should I Object?
The key consideration of whether you should object or not is if you waive any objection at trial by not opening your mouth at the deposition.
“An Objection To The Form Of The Question Is Waived Unless Made During The Objection
If you fail to object to the form of the question or answers, the oath or affirmation of the witness, or the conduct of the party at the deposition, then you waive the same objection in a future trial. In effect, if the improper statements could be corrected on the spot, then you need to object on the spot, or the Court will figure you do not care and waive the future objection. Objections, such as hearsay, competency of the witness, ect. ect., are not waived, and are preserved until the trial.
Prosecuting The Objection: Can I Use Leading Questions?
As a deposition is a discovery device, we should always ask open ended questions, right? Not exactly. When examining hostile witnesses (ie. most witnesses you are deposing as the deposition is compelled), there is certainly a time and place for the open ended discovery questions in a depositions (“And then what happened? And then what happened?).
“Traditional Deposition Methods Employing Only Open-Ended Questions Do Not Train Well Or Produce The Most Usable Results”
-Cross Examination, Science and Techniques, Posner & Dodd
But be prepared to utilize leading questions in the deposition to build your case. You can specifically use leading questions:
- To establish the facts you want to use at trial: You want to come out of the deposition of an adverse witness witness with straight, specific answers. This will allow you to better prepare for trial or subsequent settlement negotiations. You don’t want to be reviewing that muddle mush of a deposition prior to trial and say, “I can’t use this!”.
- To Teach the Witness How to Behave: The deposition is often the witnesses first crack at the litigation game. Teach them early how to behave, and you can reap rewards at the trial. Criminal defense lawyers will regale others with stories of cops who were scolded soundly at a deposition, hearing, or trial, and was always “obedient” with that attorney at every trial thereafter.
- To Teach Yourself Cross-Examination: The reality is that lawyers today will sit in many many more hours of depositions than trials. But great cross-examination takes practice. Work on your cross examination skills during your depositions!
Any Tips On Handling An Unresponsive Witness?
The unresponsive witness is a hostile witness.
Use leading questions.
You need to teach the witness how to behave. Consider using the following tactics:
Ask. Repeat. Repeat:
If the Witness does not answer your leading question, ask again exactly the same way, only much more slowly.
Q. “Ms. Jones, you signed under oath this 2012 tax return”
A. “I don’t really know documents you are talking about. I have seen so many document today”
Q. (Very slowly)”Ms. Jones, you signed under oath this 2012 tax return” (Repeated question. It has not been answered appropriately)
ASK, REPEAT. REVERSE
This builds on the technique above. Point out the silliness in the witness by asking the reverse question.
Q. “Ms. Jones, you signed under oath this 2012 tax return”
A. “I don’t really know documents you are talking about. I have seen so many document today”
Q. “Ms. Jones, you signed under oath this 2012 tax return” (Repeated question. It has not been answered appropriately)
A. ” Blah Blah Blah”
Q. (Very slowly) “Ms. Jones, you did not sign under oath this 2012 tax return?”
A. ” No, no I didn’t say that”
Q. So you did sign this tax return”
SHORTENING THE QUESTION
Q. ” You had a glass of whiskey before the fight began”
A. “Blah blah blah”
Q. “Glass. Whiskey”
A. “Blah Blah Blah”
The Body Turn
Sometimes the witness just sucks. The witness is despicable, and insists on being unresponsive during your deposition.
In such a case, utilize the body turn.
When the Witness rambles uncontrollable, slowly turn your body away from the witness. Don’t stop the witness from rambling, just turn your body. The effect is amazing.
Talk to The Hand
Similar the the body turn, there is a time and a place for the hand stop.
When the witness is wholly unresponsive, put your hand out like a crossing guard.
What About The Objecting Opposing Counsel?
Speaking Objections: Way too often Attorneys make improper speaking objections throughout their witnesses’ deposition. Speaking objections are an attempt to influence the testimony of the witness, to throw off the game of the questioning attorney, or both.
“Lawyers Are Prohibited From Making Comments On And Off The Record Which May Limit A Witness’s Ability To Answer An Appropriate Question:
-Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).
Speaking objections and other attempts to coach the witness are improper and subject for sanctions.
If the other attorney is being a jerk, be sure to:
1. Object and point out the behavior on the record: Remember to preserve your objection on the record. If the attorneys behavior includes physical or inaudible cues, you will need to articulate it for the Court reporter and the written record.
2. Go off the record and demand the offending attorney stop acting like a jerk. Many times, the attorney is just seeing what he can get away with. Show the attorney that you know the rules. Be firm. Let him know that if you have to stop the deposition, you will seek sanctions.
3. Terminate the deposition and seek sanctions: If you cannot get the other attorney to act reasonable and the behavior is affecting your ability to take the deposition, terminate the deposition without delay, and set a Motion to Compel or Motion for Sanctions without delay.
Be sure to seek attorneys fees for the wasted deposition and motion needed to get a fair deposition. Judges have little patience with jerk attorneys who intentionally frustrate the discovery process.
Should I Order The Transcript?
Know if you are going to be ordering the depositions. If you are taking the deposition, it is your Court reporter, so you will decide to order or not.
Know your Court reporter. That way, you know who you are dealing with.
You can order a copy for yourself and force opposing counsel to order a copy for themselves.
Alternatively, you can both order a copy and agree to give copies to each other. The Court Reporter is under no obligation to give both parties a copy of the deposition unless ordered by both parties, but there is nothing stopping the parties to do it among themselves.
And if money is an issue (think domestic cases), then the Court reporter may be happier to sell two copies (or one) than none at all. Similarly, if you are filing the deposition, then you must send a copy (or make a copy available) to the other party.
Some attorneys mistakenly believe that they can file a deposition but force you to buy your own copy. The law is clear: If you file something with the clerk you need to make it available to the other party.
What Is The Errata Sheet?
At the end of a witness’ deposition, most attorneys tell the witness they have the right to “review” what was written. This is technically incorrect. The witness has the right to amend, correct, or supplement the deposition. This can be done on the Errata Sheet.
The witness can “waive” this right should he or she so wish. It is up to the witness, not the attorney.
How Should I Dress At The Deposition?
Look, you are a lawyer. That’s awesome. But you need to look the part.
Too many lawyers show up to depositions in jeans and polo shirts. It is unprofessional. Consider that this might be the first (if not only) experience with the legal system that the witness you are deposing will experience.civi
Do your part to promote the perception of the lawyers as a professional group.