How lawyers conduct and use depositions

Purposes of depositions

Depositions can serve many purposes. Here are some of the most common:

  • Gathering Facts. Depositions are a natural extension of written discovery. Written discovery will help a personal injury attorney to identify which persons should be deposed; the depositions will allow the attorney to find out what those witnesses know.
  • Freezing Testimony. Deposing a witness gives a personal injury attorney a preview of a witness’s testimony at trial. It also locks the witness into one set of facts. If the witness tries to change his or her testimony at trial, the witness’s deposition can be used for impeachment.
  • Obtaining Admissions. Sometimes the facts about which the witness testifies can be used as admissions. In most jurisdictions, this will be true when the plaintiff’s attorney deposes the defendant or, in the case of a corporate defendant, someone who can bind the defendant. In the context of depositions, the term “admission” can also mean any fact the attorney obtains from the witness that tends to undermine the witness’s story and bolster the plaintiff’s.
  • Authenticating Documents. As a personal injury lawyer works up a case, he or she is always thinking about how they will get the documents they plan to use at trial into evidence. One of the first steps is the authentication of the documents. While authentication can often be accomplished by stipulation or with requests for admission, a lawyer can also ask witnesses directly about foundational elements such as the genuineness of a document.
  • Supporting Motions. Many types of motions can be supported by testimony the personal injury lawyer obtains at depositions. Often deposition testimony is more persuasive than affidavits, because the witness will be subject to cross-examination by the opposing attorney, which is not true of affidavits.

Depositions as a trial tool

Here are some of the most common uses for depositions at trial:

  • To impeach. If a deposition is conducted correctly, the witness will be locked into a single story about the pertinent facts. If the witness testifies differently at trial, the witness can be impeached with his or her deposition testimony.
  • To refresh a witness’s recollection. Nearly anything can be used to refresh a witness’s recollection, and depositions are no exception.
  • To read as an admission. If testimony qualifies as an admission under the rules of your jurisdiction, your attorney can read the admissions out loud during your part of the case.
  • To read in place of live testimony. Not every deposition can be read in the place of live testimony. Your attorney will consult the rules of your jurisdiction. Generally, the witness must be unavailable because of illness or death or because the witness cannot be subpoenaed. Still other rules apply if an attorney wants to read depositions that were taken in another case.

Because there are many ways to use depositions at trial, all of which might affect a lawyer’s deposition strategies, an experienced personal injury lawyer will periodically review the rules governing the use of depositions at trial in his or her jurisdiction. Even better, a lawyer will make it a habit to review these rules as an integral part of his or her preparation for any deposition.

Where depositions are conducted

As long as there is room for the witness, lawyers, and court reporter to sit without being cramped, the location of a deposition is not terribly important. Here are some general rules:

  • Most commonly, depositions are conducted in the office of one of the lawyers working on the case.
  • When the witness is a doctor, the deposition will almost always take place at the doctor’s office.
  • If a deposition takes place out of town, it can be scheduled in a hotel conference room, a court reporter’s office, or the office of a lawyer unconnected with the case.

Some personal injury lawyers place strategic importance on the location of a deposition. Most lawyers insist, for example, that the deposition of their own client be taken at their office rather than at the office of the opposing lawyer. Such an arrangement, which is meant to make the client feel at ease, can easily be worked out by agreement.

Ten things a personal injury attorney covers in every deposition

When preparing an outline for the deposition, a personal injury attorney will likely consider all of the following subject areas:

  1. The standard preliminary questions.
  2. How the witness prepared for the deposition.
  3. What the plaintiff has said or written about the issues in the case.
  4. What the witness who is being deposed has said or written about the issues in the case.
  5. What other witnesses have said or written about the issues in the case.
  6. Conversations the witness has had about the incident, the lawsuit, or the deposition.
  7. Other witnesses to the incident or event at issue.
  8. The witness’s relationship to the parties and other witnesses in the case.
  9. Convictions (unless the witness’s testimony helps the deposing attorney).
  10. Admissions or other testimony that will help to bolster the case.

Preliminary deposition questions

Most lawyers begin depositions with a series of preliminary questions that vary from lawyer to lawyer, but which generally go something like this:

Q: Have you ever had your deposition taken before?

Q: You understand you are under oath?

Q: And that means sworn to tell the truth?

Q: And even though we are in an informal setting here in this office, your answers have the same force and effect as if we were in a courtroom with a judge and a jury?

Q: Are you prepared to answer my questions today?

Q: There’s nothing that will prevent you from giving me your full attention?

Q: You aren’t taking any medications or suffering from any illness that will prevent you from understanding my questions or answering them fully?

Q: If you don’t understand one of my questions, will you let me know?

Q: If you need to take a break at any time, tell me, and we’ll take a break. Is that okay?

One reason for using the standard preliminary questions is to put the deponent at ease right from the start. But more importantly, they will help a personal injury lawyer later if he or she needs to impeach the witness with his or her prior testimony.

Basic deposition questioning technique

Here are some things to keep in mind about how attorneys phrase questions at depositions:

  • If an attorney is trying to get information, they ask open-ended questions.
  • If an attorney is trying to pin a witness down, they ask leading questions.
  • Whether open-ended or leading, attorneys try to keep questions short even though they don’t always succeed.
  • Attorneys also generally try to make each question self-contained, so that the witness can understand it without reference to other questions.

If an attorney messes up after he or she has started a question, he or she can say “strike that” and start over. Another method of starting over is for the attorney to say to the witness, “I’m going to start over. Okay?” This way, after the witness answers “yes,” the corrected question will start on a new line of the deposition transcript.

The witness can’t outsmart the deposing lawyer at a deposition

Can a witness “outsmart” the lawyer who is asking questions at a deposition? It can certainly happen during a trial, especially during cross-examination. But a deposition is different than cross-examination.

Assuming the lawyer’s goal of the deposition is one of the common ones—finding out what the witness knows, learning about the other side’s defenses, obtaining admissions, and so on—then the lawyer is not cross-examining, but just trying to get information. This usually means there won’t be any opportunity for the witness to “outsmart” the lawyer. Instead, there will only be opportunities to evade, mislead, or lie, which isn’t outsmarting the attorney at all—it’s getting the witness in deeper if he’s caught.

If the witness lies, he’s likely to be caught. Once the deposition ends, the discovery phase of the case continues. Unlike cross-examination, which comes at the end of the case, the attorney will have plenty of opportunity to test the truthfulness of a witness’s deposition answers as the case continues.