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Depositions and Preparing Witnesses

July 4, 2010

Looking ahead-how to use deposition testimony

What is the Purpose of the Deposition

As you are preparing to take depositions in a case it is important to make sure that you have all of the documents and information necessary to question the witness; and that you have a purpose and/or a goal in mind.

1. Get the Documents

Although written discovery is not always very useful, it can certainly get you the documents that you will need before taking depositions. Some lawyers will even use Request for Admissions before depositions to establish some preliminary matters, such as jurisdiction and venue.

If you are having difficulty getting the defense to produce documents, then you may consider starting with a corporate representative deposition that specifically asks about the documents that are at issue. During that deposition, you can establish the whereabouts of the documents at issue; the ease in which such documents can be obtained/copied; the content and relevance of the documents at issue to your case; the reason why such documents exist; etc… If all else fails, then don’t be afraid to file a Motion to Compel.

After you have obtained the defendant’s documents, you should go through them and decide how they can be used with the witnesses. To the extent that you do not understand anything in the documents, you should ask the witness(es) to explain them.

2. Have a Goal in Mind

For each deposition that you take you should have a goal in mind. It is a helpful to prepare, but not necessarily use and/or rely upon an outline. By preparing an outline you are forced to organize your thoughts and focus on the salient issues.

In addition to having a goal in mind, it is also fun and sometimes rewarding to come up with a top ten list of tough questions for the witness, which can either be used at the beginning of the deposition or throughout. For instance, in a slip and fall case, you may consider asking the store manager/corporate representative whether the grocery store is going to accept responsibility for what happened to your client. After getting the grocery store manager to acknowledge that it is the store’s responsibility to keep its floors in a reasonably safe condition, ask him/her to admit that the floors where unsafe for your client on the day that she fell. Although you will probably get predictably defensive responses most of the time, you will never get the great admissions without asking the tough questions.

Using What you Learn from the Deposition

You should always read the deposition transcripts as soon as you get them. I try to summarize the depositions and from time to time will come up with a number of Request for Admissions to solidify the key testimony in support of the case. If the Request for Admissions are not answered within 30-days then they are deemed admitted. Often times, the defense will try to object to the Request for Admissions on the basis that they seek information that is already in the depositions. However, this is an improper objection because deposition testimony can always be changed, while an admission cannot.

If new information or documents were identified in the deposition, then you should also send out a new Request for the Production of Documents.

How to Use Deposition Testimony at Trial

Deposition testimony can be used at trial in a number of different ways, including but not limited to:

1.For any purpose;


3.Opening Statement Exhibits;

4.Closing Argument Exhibits;

5.Request for Admissions;

6.Outline for Direct Exam; and

7.Outline for Cross Exam.

II. Preparation Of The Witness

The Players, Setting and Video Cameras

In preparing any witness for a deposition it is very important for you to paint the picture of exactly what to expect. If the deposition is going to take place in your office then you should get them into your office and have them sit in the very place where they will be for their deposition. You need to make sure to let them know who is going to be present at the deposition, including the court reporter, and all opposing lawyers. It’s also important to point out to the witness whether or not the deposition will be video taped. It’s often helpful to let the witness know that depositions under Missouri law can be used for any purpose. Therefore, they need to be on their best behavior and understand the ramifications of their words and actions.

Clothing, Body Language, Pace, Tone and Voice

I believe that a witness should dress in clothing that makes them feel comfortable. However, if your witness has a tendency to dress inappropriately (i.e., ripped jeans or short skirts) then you may have to say something.

Body language is also very important. You need to make sure that your witness understands how certain body language can influence the person taking the deposition and the folks that may be making the decisions in the case, more specifically, the jury. It is important for the witness to keep their hands and arms open and free as opposed to crossed. If one crosses their arms or hands, it can be a sign that they are shutting themselves off or hiding something from the folks that are listening.

The way they speak is also important. The witness needs to take their time in thinking about how to answer a question and also in delivering their answer. It is often helpful to tell your witness to go through a few steps in their mind before they answer the question, including but not limited to, (1) do I understand the question; (2) do I know or have an answer to the question; (3) how do I want to answer the question. Your witness also needs to understand that if he or she does not have an answer to the question it is alright to simply say I do not know. In addition, if your client or witness does not understand the question he or she needs to be comfortable with telling the lawyer that he or she did not understand it. It is ultimately the deposing lawyer’s responsibility to provide the witness with questions that are understandable.

Lastly, it is important to make sure that your witness understands that he or she should never argue with the lawyer taking his or her deposition. If the witness starts to argue with the lawyer, then of course, the lawyer will always win.

To Tell The Truth Always

It is always important to let your witness know that they are under oath during the course of the deposition and that the most important thing that they do is tell the truth. That is exactly why it is alright to tell the opposing lawyer that he or she does not understand the question or that he or she does not have an answer or doesn’t know the answer to the question. It is also important to point out to the witness that he or she is only there to answer the lawyer’s questions. He or she is not there to tell their story. If you are producing the plaintiff in a case, he or she needs to understand that this is not their opportunity to tell their story. Instead, it is the defense lawyer’s opportunity to ask questions and the plaintiff’s job is simply to answer those questions. Generally speaking, concise answers are preferable. However, you want to make sure your witness understands that they can answer a question in a sentence or two if that is necessary. You certainly don’t want to box them in to feeling they can only say yes or no to every question asked.

Cross-Examining Your Witness

It is often helpful to have another lawyer in your office cross-examine your witness. It is better to have someone else do the cross-exam so that your witness can still look at you the same way and rely upon you to protect them. It is great to have another lawyer ask the witness some pretty tough questions to get them accustomed to how things are going to work.

You want to make sure to have a bond with your witness that you are producing. Your witness needs to understand that you are the lawyer that is looking out for their interests at the deposition and that should the lawyer on the other side of the table do anything that is out of line, you are going to take care of them. You also need to make sure to go over how you are going to use objections in the deposition so that they understand the purpose for those objections and also so those objections don’t interfere with their ability to answer the questions. I have seen witnesses who will latch onto words used by lawyers in objections that often cause more damage for the side making objections than it does to the side taking the deposition. Be careful how you use objections and always make sure that your witness has a good understanding of how you are going to use objections in the deposition.