Depositions


You can use it to have the witness take you through this information, or, if you prefer, you can simply ask the witness to confirm that it is an up-to-date resume and attach it as a deposition exhibit. A final procedural issue which can be a little confusing at first is whether the witness will "read and sign" or "waive" at the end of the deposition. By rule, the witness has a right to review the transcript of their testimony and make any substantive or clerical changes to it, prior to it becoming official. Te witness can also waive that right. Te decision as to whether the witness shall “read and sign” or “waive,” is up to the witness being deposed and the attorney defending the deposition. In my experience, the best practice when defending a deposition is to have the witness "read and sign" just in case there is anything in the deposition that was incorrect or omitted. It is always better to be safe than sorry with regard to testimony.


The Grunt Work Tere is no substitute for thinking through the applicable


issues in your case well in advance of deposing any witness. Tis is particularly true when, as is often the case, medical records are involved. Tere is no excuse not to know these records cold. (For more on medical depositions, see David Wildberger's article on page 27). Organizing all relevant records and documents in a paginated or divided binder, with a detailed table of contents, is just one way to help familiarize yourself with the relevant material and make said material readily accessible during the deposition. Of course, preparation involves more than just studying records and other documents; preparation for a deposition means knowing your case. Sitting down and sketching out the themes you intend to use at trial, the strengths of your case, the weaknesses, and any other major issues or obstacles that you see. Sometimes, it is simply not possible to do this as thoroughly as you'd like since depositions help focus the case. However, through the use of written discovery, relevant documents, and discussions with your own factual and expert witnesses, you should be able to develop a useable framework. As a parallel exercise with the outline development,


it is important to be thinking about what you intend to accomplish with the deposition. Deposing a fact witness in a case arising out of a motor vehicle accident is extremely different than deposing a medical expert. Your preparation and outline should take that into account and be tailored to elicit the information you seek from the witness you are deposing. If you are able to do this, you are then able to use the deposition to frame the case the way you see it and, most importantly, the way you want a jury to see it. Additionally,


preparation means knowing your 12 Trial Reporter / Winter 2011


documents. If there are documents that the witness you are deposing has to authenticate, make sure you have them ready and pre-marked (if that's an option). I like to do them first to get the authentication taken care of before I forget. I then return to them as they arise during the course of the outline. I have also seen attorneys put notes in their outline to have certain documents authenticated during certain subjects of questioning. Tey will often then check off each document on their list as they are entered into evidence. A scan at the end of the deposition is made to ensure everything that needed to be entered into evidence, was done so properly. Tese documents will then often be attached to the deposition transcript. It is helpful to bring extra copies of all such documents for this purpose. It is not important which method you use. What is important is that you have a method or system for dealing with documents during a deposition. Tere will, of course, also be times when you are


defending a deposition. While your role in a deposition you are defending is slightly more passive than that of the deposing attorney, you are just as crucial to the process. You are the one who is there to protect your client or witness, ensure they are not bullied into answering questions that are not permissible, and protect the overall integrity of your case. As you might imagine, the grunt work plays an equally important part in defending a deposition.


All of the above suggestions on


preparation for taking a deposition also apply to defending one. If you understand the themes of the case, then you will know why the other side is deposing your witness. You will therefore be able to thoroughly prepare your witness for what to expect at deposition. You will also be well prepared and equipped to actively listen at the deposition, understand and maybe even anticipate opposing counsel’s line of questioning, and thus make the appropriate objections when necessary.


2. Cooperation I have found that it is very important to be as cooperative


as possible with opposing counsel. Tere will almost certainly be little things that opposing counsel does that bother you during the deposition such as complaining about documents that your witness doesn't have or didn't produce in advance, checking their watch frequently throughout your questioning, or using form objections too often and in improper instances. In my experience, fighting over these little things are not worth the energy and potential animosity which such arguments create. I recommend saving your energy for real fights. Be as cooperative as possible during depositions and the discovery process as a whole. It makes it much easier for you to have credibility with the Judge if you and opposing counsel haven't already had to go before him/her multiple times to mediate discovery disputes. Of course, this isn't a hard and fast rule. If opposing


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