PASTORAL COUNSELING AND EDUCATIONCENTER
1204 PROCEDURE FOR HANDLING DEPOSITIONS1204 PROCEDURE FOR HANDLING DEPOSITIONS1204 PROCEDURE FOR HANDLING DEPOSITIONS 03/21/95
I.Review PCEC Policy on Client Confidentiality
II.What is a Deposition
A deposition is a form of oral testimony taken from a witness under oath, not in court, but conducted in a manner approved by the court. The testimony is taken before a stenographer, reduced to writing and often used in court at trial. The deposition is a pretrial discovery procedure and is probably the most important way to investigate the facts. The person whose deposition is being taken is called the deponent.
The deposing counsel will have one or more of many different reasons for deposing a witness. The general purposes of a deposition are as follows:
A.Discovery of facts
The purpose of a trial is to ascertain the facts and to apply the law to the facts. The jury must know the facts in order to decide between
conflicting claims of the plaintiff and the defendant and to decide what, if any, relief should be granted and what, if any amount of damages should be awarded to the plaintiff.
Depositions are generally taken to obtain information which cannot be obtained through counsel's investigation or from the client or other witnesses, and to supplement testimony and evidence obtained from other sources.
B.Impeachment
A deposition serves the purpose of freezing a witness' story. If the deponent later testifies at the time of trial in any way differently from his/her testimony at his/her deposition, his/her deposition can be used at trial for the purpose of contradicting and embarrassing the witness by showing prior inconsistent testimony. This is called impeachment. Juries are inclined not to believe witnesses who change their stories.
C.Admissions which would constitute affirmative evidence
Examining counsel may try to trap the deponent into admitting facts which will hurt his/her case or into inadvertently misrepresenting the facts in a way that will appear to the jury as if he/she were not telling the truth.
1204 PROCEDURE FOR HANDLING DEPOSITIONS (cont., page 2)
D.Preservation of the testimony of a witness
A witness or party who, for one reason or another, might not be available at the time of trial can be deposed and the transcript of his/her testimony may later be able to be used at trial if the deponent does not appear to testify at trial.
E.Learning the identity of witnesses
Examining counsel can require the deponent to state the name and identities of other persons who may be witnesses to the particular occurrence or who may have other information which might be useful. This information may lead to further investigation or depositions.
F.Facts and issues are narrowed and clarified
By proper questioning during the deposition, and by conferring with the deponent's counsel after the deposition, complex facts and issues of the case often can be reduced to the few that are really in controversy, thereby saving everyone's time and money.
G.Client will learn about opponent's side of case
Following a deposition a party may, for the first time, be impressed by his/her opponent's case. A party is suddenly brought face-to-face with the fact that his/her opponent is going to say a lot of things that he/she did not anticipate. With those things in mind, the party may now appreciate that there is more to the case than he/she thought and can more realistically appraise the case.
H.Evaluating the case for settlement
In most instances those cases which ultimately are settled cannot be properly evaluated for settlement until counsel on both sides have completed taking depositions. Counsel will have an opportunity during the deposition to evaluate the impression that the opposing party is going to make on a jury.
I.Settlement opportunity
The taking of the deposition is often a convenient opportunity for counsel to discuss the possibility of settlement.
III.How to Prepare for the Deposition
1204 PROCEDURE FOR HANDLING DEPOSITIONS (cont., page 3)
There is a great difference between a deposition and a trial. The deposition is a one-sided affair which favors the examining party. The deponent is under a general obligation to answer all questions. He/she will be asked some questions that would not be admissible in court. This is to permit adequate discovery and pretrial preparation. No judge will be
present and the deponent’s attorney will play a very limited role. It is critical to remember this. He/she will be listening to every question
asked and will object to those that are improper. Do not misconstrue this silence as failure to protect your interests.
Your attorney will ordinarily hold a pre-deposition conference prior to the deposition date. Before attending that conference painstakingly and thoroughly review the entire history of the incident that provoked the lawsuit.
Prepare as though you are going to be deposed. Carefully review all documents pertaining to the case. Your attorney will want to advise you about the tougher questions you will be asked and may even wish to conduct a "dry run" with you to ask key questions he/she expects the opposing counsel to ask.
The deposition may be conducted anywhere. It will probably be in the office of one of the lawyers. The setting will be informal and as relaxed as possible. Usually, only the deponent, the lawyers and a stenographer will be present. The parties of the lawsuit can attend. The examining counsel may well be quite friendly but do not be lulled to sleep. This cordial atmosphere is often created so that you will be likely to talk more freely.
Frequently people are nervous merely being in a law office. In a strange environment one always feels anxious. Try to realize that despite the importance of the deposition to all concerned, it is a routine setting. Try not to be nervous.
All non-lawyers have some degree of misconception about the adversary process. Do not be upset if your lawyer chats amiably with opposing counsel. They may be well acquainted and friendly, but this will not work to your disadvantage.
Once all parties are ready, the attorneys, especially if they are experienced, may agree to certain stipulations. These generally concern legal technicalities of the deposition such as notice, filing, certifying and signing. These technicalities have no great significance. The lawyer can explain them if you are interested. Generally, these are intended to streamline the deposition process. The most important stipulation is that objections about the substance of specific questions be reserved until trial time.
After stipulations are made, the oath will be administered.
1204 PROCEDURE FOR HANDLING DEPOSITIONS (cont., page 4)
The most important matter of all is the way in which questions are answered. Here is a list of twenty pointers concerning conduct during the deposition. Read them now and read them again the night before the deposition.
1.Understand the question before answering. If the question is unclear, ask examining counsel to repeat it or phrase it in clearer language. The stenographer can also be asked to read back the question.
2.Think about each question before answering it. Do not supply information not requested by the question, even though it may be relevant. If examining counsel does not ask, do not volunteer information.
3.If you do not know the answer to a question, say, "I don't recall." Do not feel that just because a question is asked, you are expected to know the answer to it. Do not guess or assume. “Do not recall” is preferable to “do not know” because it permits your recollection to be refreshed at a later time.
4.Give factual information in answer to a question only if you have first hand knowledge of the facts. Do not base answers upon information not in your personal knowledge.
5.Do not hide any facts unless instructed not to answer a question.
6.If an objection is made by counsel, stop speaking. If instructed not to answer the question, do not answer it.
7.Unless your lawyer makes an objection and instructs you not to answer, you must assume that you are bound to answer if you know the answer to a question.
8.Avoid asking questions in your answers except for a clarification of a question. Only the examining counsel can ask questions.
9.Do not try to memorize answers. Give a factual, straightforward response to the questions.
10.If a question of fact is asked, make it a practice to check it against any records and then answer it briefly.
11.Dress neatly and according to usual habit and style.
12.Exercise courtesy and good manners.
1204 PROCEDURE FOR HANDLING DEPOSITIONS (cont., page 5)
13.Remember that opposing counsel will be evaluating you constantly. From the very moment you appear, you are under observation. You must, therefore, take great care in your appearance, manner and remarks at all times. This will show him/her how you would impress a jury.
14.Do not look for traps in every question. There are not many trick questions, and if one comes along your counsel will help you out by objections or other means. Second-guessing each question creates the appearance of calculation, hesitation, apprehension, or possibly simple stupidity.
15.Do not argue with opposing counsel. Never become angry or hostile. Remain calm and unemotional even if feeling that the opposing attorney is deliberately trying to provoke. A person who gets emotionally upset loses the ability to think clearly and may give answers which will be later regretted. Insults or brow-beating from the opposing attorney are unlikely, but if this seems to be happening, resist any urge to meet it with similar tactics. Even if the lawyer on the other side is acting outrageously, maintain an outward appearance of emotional control.
16.Speak up so that all can hear. Keep hands away from mouth. Answer each question with a verbal response. The stenographer transcribing testimony cannot take down nods or shrugs.
17.The law requires only that you testify according to your best memory. If uncertain about an answer to a question, indicate this uncertainty in the response. If you have no memory whatsoever on a given point, say so. Do not guess or assume what you now think must have happened. However, if you have no clear recollection of doing a particular act inquired about, but it was your regular practice routinely to do such an act, then you may testify that it is your best memory that you did do that act.
18.Don't be afraid to admit that you have had conferences with your lawyer about the case. Every good lawyer has conferences with his/her client. If examining counsel asks you "Did your lawyer tell you what to say at this deposition?" you should answer "My lawyer told me to tell the truth."
19.You can be required to give a simple “yes” or “no” answer to a proper question but you will always have an opportunity to explain your answer if it needs explanation. If opposing counsel cuts you off in the middle of another, you should state that you have not finished your answer during his/her cross-examination.
PROCEDURE FOR HANDLING DEPOSITIONS (cont., page 6)
20.You must fight against showing any exasperation, boredom or fatigue, even though the questioning may be very extensive. Your counsel will protect you
against unwarranted harassment. Let your counsel know, however, if you feel ill or overly tired during the course of the examination. He/she can arrange for a short break or, if necessary, the adjournment of the deposition until another day.
IV.THE EXAMINING COUNSEL
As described above, the examining counsel may have several reasons for taking a deposition. The form of the questions reveals his/her major interest. If the question is primarily for discovery purposes, the questions will be broad, and the subjects far-reaching. This will encourage rambling answers that might reveal new facts. Questions will be precise and sharply focused if the deposition is conducted primarily to produce admissible evidence, which is testimony that a judge could allow a jury to hear at trial.
When the examiner is trying to compile admissible evidence he/she will also try to "freeze" the testimony. He/she will repeatedly ask, "Was there anything else done?" or, "have you told us everything?" This forces you to commit yourself to a position that you cannot amend or correct at the time of trial without risking impeachment.
Examining counsel will probably ask many leading questions. A leading question is really a statement of fact which contains the answer and only asks the witness to agree. Counsel is asking you to answer "yes" to his/her statement of the facts. He/she will try to "Put words in your mouth." If any part of the leading question is incorrect, you should not answer "yes" but make it clear by your answer that you cannot entirely agree.
Most examiners like to proceed in a linear or chronological fashion. If the examiner discovers a new, important fact, however, he/she will probably pursue it all the way and only thereafter return to his/her outline.
The examiner will try to get responsive answers. He/she may ask the same question in several ways to guarantee getting a response. He/she will demand accuracy to the limit that you can provide it and will be very watchful for prior inconsistent statements, but may not tell you when he/she finds them!
V.THE EXAMINATION ITSELF
Perhaps the first step taken by examining counsel will be to create a record which shows that you understand the nature of a deposition and the uses to which it can be
1204 PROCEDURE FOR HANDLING DEPOSITIONS (cont., page 7)
put. This is to protect him/herself if, at trial, you insist that contradictory testimony was caused by your failure to understand what was transpiring.
Perhaps the first step taken by examining counsel will be to create a record which shows that you understand the nature of a deposition and the uses to which it can be put. This is to protect him/herself if, at trial, you insist that contradictory testimony was caused by your failure to understand what was transpiring.
It is, of course, not possible to predict what questions you will be asked or in what order they will come. As a rule, the first few questions will seem incidental. (Name, address, family background, where you work.)
At some point early in the deposition examining counsel will begin a meticulous, often redundant, exhaustive inquiry concerning the events that led to the lawsuit. No detail is too small for his/her concern. Not all questions will seem relevant, not all will be relevant, and not all will even be intelligent.
VI.OBJECTIONS MADE BY YOUR ATTORNEY
Your attorney has the right to advise you not to answer questions which he/she believes are improper. That right is exercised very sparingly. If he/she hears a question for which you are not prepared and which could harm your case, he/she may instruct you not to answer, even at the risk of judicial sanction. However, this is only used as a last resort. Because refusal to answer gives deponent's counsel the right to adjourn the deposition and try to get a court order to require you to answer, naturally your attorney will object only under the most extreme circumstances.
Privileged matters (communications between a lawyer and his/her client) are outside the scope of the examination. Irrelevant matters are also outside the scope, but discovery rules make the scope so broad that it is sometimes difficult to tell when something is irrelevant. The test of admissibility at a deposition is only whether the inquiry might lead to admissible evidence. Both counsel will try to resolve disagreements of these questions. Often they will re-word or rephrase an inquiry and reach a compromise.
It is important for you to remember that your attorney may only object to very few questions, possibly to none whatsoever. Do not misconstrue this silence. The deposition proceeding is primarily for the benefit of the examining counsel, and it's only when a grossly improper or irrelevant question is asked that your attorney will likely object to the question. This may lead examining counsel to withdraw and reformulate the question.
PASTORAL COUNSELING AND EDUCATIONCENTER
1208 INSTRUCTIONS FOR EXPERT WITNESSES AT TRIAL 05/10/95
I.Prior to Trial:
Review PCEC Policy on Client Confidentiality.
II.During Questioning:
1.Listen carefully to all questions.
2.Do not feel that just because a question is asked you are expected to know the answer to it. Be able to say "I don't know" without embarrassment.
3.Do not look for traps in every question. There are not many trick questions, and if one comes along, your counsel should help you out by objection or other means. In trying to second guess each question you will create the appearance of calculation, hesitation, apprehension, or, possibly, simple stupidity.
4.Try to explain yourself clearly and simply. Avoid technical language as much as possible.