© 2001, James Alexander Tanford
Indiana University School of Law
Bloomington IN 47405
A. PRE-DEPOSITION PLANNING
1. Re-read Trial Rules 26, 28, 29, 30, and 37, and any applicable Local Rule.
2. Estimate how long you think deposition will take -- then double it
3. Draft a Notice of Deposition (and subpoena if a non-party -- Trial Rule 45). If you want the deponent to bring any documents, you will need to prepare a subpoena duces tecum or Rule 34 notice.
4. If deponent has an attorney, call attorney to arrange mutually agreeable time and place for deposition. Seek stipulation to use videotape deposition.
5. Contact notary public and official who will conduct the deposition (may be the same person). Confirm time, place, and procedure. If videotape will be used, make arrangements with video technician.
6. Prepare detailed outline based on sample outline in subsection D, below..
B. SHOULD YOUR CLIENT ATTEND?
C. SHOULD YOU WAIVE THINGS AND STIPULATE TO STUFF AT THE BEGINNING OF A DEPOSITION?
No. Stipulations are rare, and should be worked out in writing well in advance of the deposition.
D. A TYPICAL DEPOSITION OUTLINE
Formalities at beginning of deposition
1. Ask the court reporter if s/he is ready.
2. State in a loud, clear voice that the deposition is beginning.
3. Identify by name and connection to the case, everyone who is in the room. If a mouse runs by, get its name and put it on the record. If a video operator is taping the deposition from another room, include him or her.
4. Ask the notary public to swear in the witness.
5. Ask the witness to state his or her name and spell it.
6. Explain to the witness the procedures for conducting the deposition, e.g.:
Mr. Witness, I am Alexander Tanford, an attorney representing Ms. Plaintiff. This is a deposition, in which I will ask you questions and you must answer them truthfully unless your attorney tells you clearly and directly not to answer. Although no judge is present, this is a formal legal proceeding just like testifying in court, and you are under the same legal obligation to tell the truth, the whole truth, and nothing but the truth. If you do not understand any of my questions, feel free to say so, and I will rephrase it. Before the deposition can be used in court, you will have the opportunity to read over it and correct any mistakes. Do you understand this?
7. If the deponent was supposed to bring documents, ask for them to be produced. Give them to the court reporter and ask him/her to mark them as exhibit one, two, three, etc. Describe them verbally as you do, e.g.
Reporter, please mark this copy of John Doe's 1995 federal tax return as exhibit one.
After they have been marked, ask the opposing attorney if s/he would like to see them, and put it on the record, e.g.:
Mr. Cochrane, would you like to see exhibit one?
Outline of topics to cover in deposition
1. Deponent's background
Name, address, age, date and place of birth, all places lived, social security number
State of deponent's health, including drug/alcohol use, disabilities, eyesight and hearing, mental
illnesses, and whether deponent has ever been under the care of a doctor or therapist
Names, ages & other information about spouses, children, parents
Previous marriages or children, including grounds for divorce and custody arrangements
Current job, including hours, salary, benefits
Job history, including reasons for leaving prior jobs
Educational background, including suspensions and expulsions
Financial information, assets, bank accounts, investments, real property owned [if relevant]
Ownership of cars, boats, RVs and other major assets [if relevant]
If deponent represents a corporation, ask about its structure, official name, licenses, and
names of important corporate officials.
2. Factual chronology of events
Try to find earliest relevant point in time, then move chronologically like an interview
Ask about source of information
Did you see it personally?
Who told you about it?
Where did you read about it?
Ask deponent to describe and draw diagrams of important locations
Ask for names and addresses of every person mentioned during the chronology
Ask for specific details of any statements about anxiety, depression or other mental condition
3. Other similar conditions and events
For each important event deponent discusses, find out whether deponent has been involved in
any similar events before or after.
Authenticate existing documents [hand to deponent and ask him/her to identify]
Get explanations of any codes or abbreviations on records
Ask if there are any related documents
Ask for explanation of deponent's record-keeping practices
Ask if the deponent knows of any documents in the possession of others
Ask if the deponent has a personal diary, journal or calendar covering the relevant times
5. Go over allegations in pleadings
Plaintiff should ask defendant to explain reasons for each denial in the answer.
Defendant should ask plaintiff to explain reasons for and give the details of the basis for each
allegation in the complaint.
If defendant counterclaimed, plaintiff should ask for an explanation and the factual basis for
each allegation in the counter-claim.
6. Go over factual assertions in third-person reports
Ask for admission, denial, explanation and details of any incidents mentioned in reports by
police, welfare workers, school officials, etc.
7. Make a list of all allegations about the deponent's conduct made by your client and witnesses; arrange them in order, and ask deponent for admission, denial, explanation and details, but do not say who told you.
Good: On March 21 at her mother's trailer, did you hit Sally with baseball bat? Did you hit
her at all? What do you say happened at that encounter?
Bad: Sally and her mother both say you hit Sally with a baseball bat on March 21. Is this
8. If any damages are claimed, go over basis for them
How were dollar figures calculated?
Are there bills or other written documents to support claim?
End of the deposition formalities
1. Explain that any exhibit will remain in the custody of the court reporter, annexed to the deposition itself. If the deponent needs the original for some legitimate reason, a copy may be substituted. Do it now. State that there will be a 5-minute adjournment while a copy is made. Make the copy. Reconvene the deposition and have the copy marked and obtain agreement that it is true and accurate. E.g.
We are back. Let us resume the recorded deposition. Reporter, please mark this photocopy of deponent's appointment calendar as exhibit nine. I have examined it and am satisfied it is a true and accurate copy of the original. Mr. Cochrane, I am handing it to you, and would ask that you examine it and state any objections to its accuracy for the record. Hearing no objection, let us continue.
2. State that you have no more questions.
3. The opposing attorney has the right to ask a few questions for clarification or rehabilitation, but does not have the right to conduct a lengthy interrogation.
4. After the opponent has asked his or her questions, state that the deposition is ended.
5. If the other attorney asks if you will stipulate to a waiver of the reading, signing etc., you should politely decline, because you don't know what s/he's talking about..
E. HOW TO ASK GOOD DEPOSITION QUESTIONS
Ask simple, direct, one-topic questions.
Explain what you want -- phrase your broad questions as clear instructions, e.g.,
Tell me everything you remember about that conversation.
Please tell me exactly what steps you took.
Think in paragraphs -- identify a topic, ask a general question, then ask who, what, where, when, why and how, then use a closing question -- "Anything else you can think of?"
In general, follow "funnel" sequence suggested in interviewing: Broad questions first, followed by directed questions, followed by narrow questions to nail down specific facts.
Don't try to slant questions toward your side or persuade witness she is wrong -- remember that the whole purpose is to discover what the witness will say at trial.
Be curious -- probe, ask why, ask witness what s/he was thinking
Follow up generalizations and opinions with requests for details
Pay close attention to the response
Insist on responsive answers; if witness doesn't answer, repeat the question.
If the witness is unsure, ask for an estimate or opinion; ask if there are any records of the fact forgotten
Watch the deponent, not your notes
Take notes only to remind yourself to ask a question not in your outline.
Remain professional -- don't react visibly to unexpected events.
Don't impeach or get hostile toward witness who is hammering you
F. OBJECTIONS BY OPPONENT
Your opponent has the right to make evidentiary objections during the deposition in state court proceedings; in federal court s/he may only object to assert a privilege
Your opponent also has the right to make "discovery" objections
1. Work product
2. That you are misusing discovery for the purpose of harassment
Your opponent has some ability to instruct his or her client not to answer one of your questions.
G. PROPER RESPONSE TO OBJECTIONS DURING DEPOSITIONS
Instruct the witness to answer your question.
Do not respond to or argue with the attorney.
H. YOUR RESPONSE IF THE OPPOSING ATTORNEY INSTRUCTS THE WITNESS NOT TO ANSWER.
If the deponent is the attorney's client, there's nothing you can do. Ask the court reporter to "certify" the question (prepare a portion of the transcript containing the question and instruction and the reporter's certification that the transcript is accurate). If the attorney did not state grounds, ask that they be stated on the record. Tell the court reporter you would like to order a copy of the record covering this page and the five previous pages, and ask the reporter to get that to you as soon as possible. Then continue the deposition. You can decide later whether to file a Rule 37 motion to compel an answer.
If the deponent is not the attorney's client, inform the deponent that the attorney does not have the legal authority to instruct anyone other than his or her clients not to answer. Tell the deponent to answer the question. If the deponent refuses, ask the Reporter to certify the question as above.
I. YOUR RESPONSE TO IMPROPER OBJECTIONS, OBSTRUCTION AND OTHER INTERFERENCE WITH YOUR ABILITY TO CONDUCT THE DEPOSITION
Don't argue with the other attorney.
Remind the other attorney that all objections other than privilege are automatically preserved and need not be made during the deposition.
State for the record that you believe the attorney is unduly interfering with the deposition, which is improper, and request that the attorney stop.
Adjourn the deposition, go to the courthouse, and seek a Rule 37 order against obstruction by the attorney.
J. POST-DEPOSITION PLANNING
Will you need to use the deposition at trial or a hearing? If so, request a copy from the reporter and file it with the court.
A. MAKE SURE YOUR CLIENT SHOWS UP
Send written notice to client giving time and place of deposition and any documents the deponent must bring.
Tell client to meet you at your office before deposition, or arrange to pick him or her up.
Call a few days before the deposition and remind your client.
Call the night before the deposition and remind again
B. GIVE YOUR CLIENT THE FOLLOWING GENERAL INFORMATION:
You will be sworn to tell the truth
The other lawyer will ask a lot of questions; you must answer them just like in court
They can ask anything they want, including lots of embarrassing and personal stuff.
Everything is recorded or videotaped
At trial, they can point out differences between what you said at the deposition and what you say at trial, so don't say anything unless you are sure about it.
Depositions can last two hours or more.
You can ask for a break any time you want one.
Dress comfortably -- you don't have to put on a fancy suit.
Bring your own soft drink or water
Explain who will be there -- reporter, lawyers, etc.
No cheering section, unless deponent is a child who wants a parent present.
Stay calm and don't argue with the attorney
C. EXPLAIN TO YOUR CLIENT THE SEQUENCE OF EVENTS
You will be sworn
You will be asked a lot of background questions including who your 3rd grade teacher was
The attorney will go over and over the same ground pointlessly
The attorney will try to make you mad
If I object, ignore me. It's just for the record.
I cannot coach you during the deposition, but I can answer specific questions. If you have a question, state that you want a recess. If I think we need to talk, I will ask for a recess.
If I instruct you not to answer a question, don't answer it no matter what the other lawyer says.
If you do not understand a question, say so
If you do not know the answer, say so
Don't guess unless the lawyer asks you specifically for an opinion.
If the lawyer asks you whether something is "possible," answer that anything's possible.
Don't worry about trick questions -- I will object and point out the trick.
If the attorney summarizes lots of facts and asks you to agree, ask him/her to repeat the question one fact at a time.
Don't volunteer; don't ramble; just answer the questions.
Don't agree to provide documents without consulting me.
D. PREPARE YOURSELF
Re-read Trial Rule 26(B) on the legitimate scope of discovery
Re-read Trial Rule 28 on the person before whom the deposition may take place
Re-read Trial Rule 30, especially subsection (C) on objections.
Review the case file
E. DECIDE IF YOU WILL ASK ANY QUESTIONS
You have the right to ask a few questions at the end of the deposition to clarify matters or rehabilitate your witness.
Don't. You can correct it later.
F. OTHER USEFUL PREPARATION STUFF
Take the deponent to the room where the deposition will be held and show him/her where s/he will sit.
Take the deponent to re-visit any places likely to come up during the deposition.
Consider a Rule 26(C) protective order to limit scope of deposition
G. WHAT TO DO DURING DEPOSITION
Make notes if client inadvertently says anything incorrect
H. SHOULD YOU MAKE ANY OBJECTIONS?
NO! The Rules of Evidence do not apply. They can ask about insurance. They can ask about hearsay. They can ask for opinions. They can ask your client if he's a peeping Tom or cheated on a 10th grade math test. Besides, an objection accomplishes nothing, because the witness has to answer the question anyway.
I. NO, REALLY, WHEN SHOULD YOU OBJECT?
Well, okay, you may have to object once in awhile. Here are the legitimate grounds for objection:
Privilege. Object to a request for information protected by the attorney-client or other privilege. Usually, you can object only to a questiion that asks the clientwhat s/he told you, a doctor, a therapist, a minister, etc.
Attorney work-product. Object to any request that the client reveal the advice you have given him/her.
Client's work product. Object to requests that the client supply documents, reports, or other writings prepared by the client specififcally for this case in anticipation of litigation, regardless of whom they were prepared for.
Irrelevant. Object to completely irrelevant information that has nothing to do with the case, the witness's background, and is not likely to lead to any relevant information. To make this objection, the information must be so irrelevant that you don't actually care whether or not your opponent wastes time asking about it. Catch-22.
Misquoting witness. Object if the attorney incorrectly summarizes deposition testimony.
Trick questions. Object to trick questions that assume facts not in evidence, contain false implications, and half-truths, or are putting words in the witness's mouth that you know are not true.
Harassing the deponent. You may object if the other attorney is conducting the deposition in bad faith or is unreasonably harassing, annoying, or embarrassing your client.
J. WHEN SHOULD YOU INSTRUCT YOUR WITNESS NOT TO ANSWER?
In rare situations, you should instruct your witness not to answer:
1. If the matter is privileged.
2. If the matter is covered by the work-product doctrine
3. If you have previously obtained a protective order prohibiting questions on this subject.
K. WHEN SHOULD YOU TERMINATE THE DEPOSITION?
In one situation, you should instruct the witness not to continue the deposition until after you have had time to file a motion to terminate it; you should order a complete copy of the deposition so far; and then you and your client should walk out.
If the other attorney is conducting the deposition in bad faith or is unreasonably harassing, annoying, or embarrassing your client, and you have made several objections but the harassment has not stopped.
L. AFTERWARD: REVIEW DEPOSITION AND MAKE CORRECTIONS
Get a copy of the deposition, read over it, have your client read it, and then make any necessary changes. See Rule 30(E).