Part II: the Wordforword Script of Every Opening Question

Part II: The WordforWord Script of Every Opening Question

and Introductory Matter for your Deposition

Introduce yourself on the record, and any other attorney from your firm or cocounsel in attendance, and client parties or others on your side, if in attendance. State that the deposition is taken by notice pursuant to the Federal (or relevant state) Rules of Civil Procedure, and that it will be used for discovery, crossexamination, and all other purposes permitted by law.

Question:Have you ever been deposed before?

Notes to You: This is just a yes or no. Do not have the deponent elaborate – that comes below. The sole purpose of this is to understand if the deponent is familiar with the rules of deposition.

Regardless of the answer (even if “yes”), explain these rulesword for word:

(a)I will ask you questions. This testimony is given under oath, so you must answer truthfully. Do you understand this is the same oath you would take in court? Do you understand that you must answer truthfully?

(b)You should wait until the question is finished. Even if you are sure what the question is, or if you are sure what I mean. You must wait until the question is done before providing any answer. If you do not wait, then we will be speaking over each other. That will make the deposition last longer. It will also render it difficult or impossible for the court reporter to transcribe accurately.

(c)Once I ask a question, you should wait a moment to see if anyone objects to the question.

(d)If there is an objection, do not answer. Wait for the lawyers to work it out.

(e)You will then be instructed to answer, or not, or the question may be rephrased, or not. But you should wait for the lawyers to hash it out before answering the question.

(f)All of your answers must be aloud, and in words. The court reporter cannot record “nodded.” The court reporter cannot record “umm-hmmm.”

(g)If you do not understand a question, or any part of it, tell me. I will try to help you understand it. Otherwise, I will assume that you understood my question and your answer is responsive. Can we have that agreement?

(h)We will take a break, about every hour. If you ever need a break in the meantime, for any reason whatsoever, please say so and we will all seek to accommodate. However, if you seek a break while a question is pending, I may ask you to complete the answer before the break.

(i)Do all these rules make sense to you? And do you understand these rules?

Notes to You: Make sure the deponent says “yes” in response to these two last questions.

(j)Please tell me how you feel today.

(k)Are you nervous?

(l)[Despite the answers above, if the deponent complains about being sick, or nervous, or not having gotten much sleep, or whatever, still ask this.] Do you feel that you can answer all of my questions truthfully?

Notes to You: If for some reason they say “no” or “I am not sure,” then ask:

Will you try to be truthful, to the best of your ability?

(m)Have you consumed any alcoholic beverages in the last 24 hours?

Notes to You: If they say they have drank alcohol in the last 24 hours, ask how much, and when.

(n)Are you currently taking any prescription medication?

Notes to You: If the answer is yes, the deponent may not feel comfortable telling you what it is. It would be hard for you to insist, and it may start the deposition off with the deponent feeling you are trying to embarrass them, or hating you, which is not productive. If you don’t feel you can find out what the prescription(s) is/are, then consider the items below. You may also wish to get off the record to explain (sincerely) to opposing counsel that you do not mean to embarrass, and really just want to know the effect of any medications on truthfulness, confusion, forgetfulness, etc. You do not want to learn of private medical conditions or other matters.

Follow Up Question:As to any medications you are taking, do you know their side effects?

Follow Up Question:As to any medications you are taking, do they cause:

Forgetfulness?

Loss of mental acuity?

Loss of memory?

Impairment of memory in any way?

Confusion?

Nervousness?

Hallucinations?

Follow Up Question:Do you feel you are suffering from any of those side effects now?

Follow Up Question:If you feel you are suffering from any of these side effects during this deposition, will you tell me?

(o)Despite the above, whatever they are taking and whatever the side effects are,still ask this: Do you feel that you can answer all of my questions truthfully?

Notes to You: If for some reason they say “no” or “I am not sure,” then ask:

Will you try to be truthful, to the best of your ability?

The “Usual Stipulations”

Notes to You: There are none.

Notes to You: Other lawyers, especially ones that seek to intimidate you, will say “let’s say all the usual stipulations apply.”

Notes to You: You should respond as follows. You must memorize these words so they come out easily, like the Pledge of Allegiance. Practice them many times a day to yourself, a co-worker, or a significant other (who will enjoy it, we assure you) in the days leading up to the deposition.

We will be conducting this deposition in accordance with the Federal (or relevant state) Rules, as follows. If a question seeks information that is privileged, you may object and direct the deponent not to answer. You and I can attempt to work it out. If we don’t, the matter can be addressed later with the Court, or we will take a break to call the Court if I deem it important. You may direct the deponent not to answer questions that are designed to embarrass or harass. All other objections are reserved except as to form. If you object to the form, I may try to rephrase, if I believe the form is unclear. If I don’t believe the form is unclear, I will ask you to clarify your objections. I may then rephrase, or I may direct the deponent to answer despite your objection. Those are the rules of this deposition. I am not familiar with any other stipulations, nor do the Federal (or relevant state) Rules recognize any such stipulations.

Notes to You: If the other lawyer squawks, hash it out and get started. And if you can’t hash it out, just start. But get the final word – the only rules or stipulations you recognize are those that you stated; if there are others, the lawyer should state what they are (and you should disagree with them, and then get started anyway).

Notes to You: Alwaysask that the deponent read and sign. The deponent can waive the right to read and sign,[1] but be wary of this. See Footnote 5 and surrounding text.

(p)Now I will begin the questions.

Background of Deponent

Question:What is your name?

Question:Have you ever been known by another name or names?

If yes, then ask the deponent to list each one.

Question:What is your home address?

Question:Do you currently reside at this address?

Question:Please describe your education, beginning with high school.

Follow Up Question:When you were in college, did you have a major course of study? Did you have any other major course of study?

Follow Up Question:A minor course of study? Any other minor course of study?

Follow Up Question:Was there any other topic of study where you took more classes than required?

Notes to You: Rinse and repeat for graduate school (all levels), law school, etc.

Question:Since graduating, have you taken any professional education courses?

Notes to You: Rinse and repeat and obtain every post-graduate course the deponent can think of.

Question:Have you ever testified under oath before?

If yes, then ask the deponent to list each time.

If yes, then ask about the case – when, what court, in what capacity was their testimony given (i.e., party or witness).

Notes to You: Remind the deponent this would include testifying at a trial, arbitration, government or regulatory proceeding, deposition, or any other circumstance in which the deponent was under oath.

Notes to You: When the deponent is done, ask “is that all?” and then await oral acknowledgement.

Question:Aside from traffic offenses, have you ever been convicted of any criminal offense?

If yes, then ask the deponent to list each one.

When the deponent is done, ask “is that all?” and then await oral acknowledgement.

And then ask “so you can’t recall any other criminal offenses for which you have been convicted, other than the ones you just mentioned?”

For each and every criminal offense listed, ask the following:

Follow Up Question:In what court was this adjudicated?

Follow Up Question:What did you plead?

Follow Up Question:What was the verdict?

Follow Up Question:Did you serve any time in jail related to this matter?

Follow Up Question:What gave rise to this criminal offense? [And then do as much follow up as you can.]

Follow Up Question:Do you have any documents relating to this matter?

Follow Up Question:I also mean electronic documents, like emails, or text messages. Do you have any electronic documents relating to this matter?

Follow Up Question:Do you know who would have any documents relating to this matter? [And then same question regarding electronic documents.]

Follow Up Question:Is there anyone else that would have any documents relating to this matter? [And then same question regarding electronic documents.]

Follow Up Question:If I wanted to learn more about this, who would I ask? [Then get such person(s) contact information, as best the deponent can recall.]

Follow Up Question:Is there anyone else that you would suggest I ask about this criminal matter?

Follow Up Question:Do you recall the prosecutor’s name?

Follow Up Question:Do you recall the judge’s name?

Follow Up Question:Is there anyone else that you would suggest I ask about this criminal matter?

Follow Up Question:Do I now have a complete list of all of your convictions?

Notes to You: If the lawyer for the other side complains about too many questions, remind him/her that the deponent did not mention the prosecutor or the judge, even when you first asked if there would be anyone else that would know any of the underlying facts.

Question:Have you ever been a party to a suit, as either a plaintiff or defendant?

If yes, then ask the deponent to name each one.

If yes, then ask about each suit – when, what court, was the deponent the plaintiff or the defendant, what kind of suit,what was the name of the lawyer, why was the deponent a party, why did the deponent file the case, or why was the deponent sued, what was the outcome, and does the deponent have any documents or transcripts in his or her possession.

When the deponent is done, ask “is that all?” and then await oral acknowledgement.

And then ask “so you can’t think of any other suit to which you have been a party?”

And then ask “what about any other type of court proceeding, like serving as an executor of a will?”

And then ask “so you can’t think of any other type of court proceeding to which you were a party?”

If yes to any, then obtain all details, repeat from above.

Question:Have you ever been a party to a regulatory proceeding?

If yes, then ask about it, using the same list of questions above.

When the deponent is done, ask “is that all?” and then await oral acknowledgement.

And then ask “so you can’t think of any other regulatory proceeding to which you have been a party?”

Question:Have you ever filed a bankruptcy case?

If yes, then ask the deponentto list each one.

If yes, then ask about the case – when, what court, what was the name of the deponent’s lawyer, why did the deponent file, and what was the outcome.

Follow Up Question:Were you denied a discharge of your debts?

Follow Up Question:If yes, then ask about the basis of the denial of the discharge.

Follow Up Question:If I wanted to learn more about this bankruptcy case, who would I ask? [Then obtainsuch person(s)’ contact information, as best the deponent can recall.]

Follow Up Question:Is there anyone else that you would suggest I ask about this bankruptcy case, if I wanted to learn more?

Follow Up Question:Do you recall the judge’s name?

Follow Up Question:Anyone else?

Follow Up Question:That is all the people you can recall that would know anything about thisbankruptcy case?

Question:Do you know what social networks are?

Question: What are the social networks in which you are currently involved?

Question:What are the social networks in which you have ever been involved?

As to each social network:

Follow Up Question:How often did (do) you post anything to [name the social network]?

Follow Up Question:Did you ever post about any of the legal actions described above?

Follow Up Question:Did you ever post about this legal action?

Follow Up Question:Did you ever post about any facts relating to this legal action?

Follow Up Question[if yes]:Could we log into that social network right now and review these posts?

Follow Up:Tell opposing counsel he or she will have to produce copies, screen shots, or other evidence of all social network posts pertinent to any prior legal action and this legal action.

Background to Deposition

Show the deponent Exhibit 1 (Notice of Deposition or Subpoena); ask the court reporter to enter it.

Question:What did you do to prepare for this deposition?

Question:Did you review any documents?

Follow Up Question:If so, which documents?

Follow Up Question:Are there any other documents you reviewed?

Question:Other than your counsel, did you speak to anyone about this deposition?

Follow Up Question:If so, who?

Follow Up Question:If so, when?

Follow Up Question:What was discussed?

Follow Up Question:What else was discussed?

Follow Up Question:Do you recall any specific comments from that conversation?

Notes to You: Repeat all of the above, asking about any electronic communications, such as email and especially text messages. [Cover this in detail.]

Question: (If the deponent is not a party) Did you speak to counsel for the [name opposing party] in advance of this deposition?

Follow Up Question:If so, tell me about that conversation.

Question:Without telling me anything about such communications, did you speak with your counsel about this deposition?

Question:How many times?

Question:In person? Who else was present?

Question:On the phone? Who else was on the phone?

Question:Via email or text? Who else was copied on any email? Who else was copied on any text?

And now, you are ready to actually start the substance of your deposition . . .

Conclusion

Question:Is your testimony complete and accurate?

Question:Is there anything else?

Conclude the deposition. Put on record if the deposition needs to be held open for any reason.

[1] See Fed. R. Civ. P. 30(e)(1).