Deposition Tips

Deposition Tips

Keep a witness file for each witness or potential witness in a case.  In the old days (or today with some older attorneys) a witness file was a bankers box or expando with a folder for each witness. Hard copies of documents including questions for that witness that pop into the attorney's brain would all be located in the witness folders.  Now-a-days, the attorneys that have given up Selectric typewriters create an electronic folder called Witnesses with a sub folder for each witness.  In this sub folder, keep a Word document for depo questions for the witness.  Also, keep a copy of all documents about which you might want to question the witness as well as a copy of all affidavits or other statements under oath given by that witness.  Finally, keep general, deposition starter questions in the file e.g.,

GENERAL DEPOSITION QUESTIONS

NRCP 30(b)(4)

[At the beginning of the deposition you can stipulate to waive some or all of these] Unless otherwise agreed by the parties, a deposition shall . . . begin with a statement on the record by the officer [court reporter] that includes (A) the officer’s name and business address; (B) the date, time and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.

At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.  [such as "any notary"? which means the court reporter can send the original to counsel, have his or her client read it & make changes, and a notary from his or her office notarize the depo.  Otherwise, the deponent must go to the court reporter's office and the court reporter that took the deposition must notarize the original deposition].

          When taking a deposition, you should consider asking virtually all of these questions of the deponent:

INSTRUCTIONS

1.                  State your name and spell it for the record please.

2.                   Do you understand that your testimony today is under oath with the same penalties for perjury as if you were testifying in court?

3.                   Do you understand that the Court Reporter is taking down everything you say?

4.                   I'm not going to try to trick you with my questions today, but I will assume you understood my question if you answer it.  If you don't understand a question, tell me and I will rephrase it.  After this deposition the Court Reporter will transcribe my questions and your answers and put them in a booklet.  You will have an opportunity to review this booklet and make any changes to your testimony.  However, if you make any changes or if you testify differently at trial, I will be able to question you at trial that you testified differently under oath at your deposition.  Do you understand?

5.                   Please wait until I complete my question before you answer so we both aren't talking at the same time.  Also answer each question out loud instead of nodding your head so the Court Reporter can take down your answer.  OK?

6.                   Are you on any medication today?  Please name all medications and what they are for.  Would any of them affect your ability to understand my questions and accurately answer them?

7.                   Have you ever been convicted of a felony?  If so, where, when and what was the nature of the crime?

8.                   Have you ever been sued individually before this case? If so, explain all of them (who was the plaintiff, defendant and all of the claims for each of them).

9.                   Have you ever individually sued anyone before?  If so, explain all of them (who was the plaintiff, defendant and all of the claims for each of them).

10.              Has any other business corporation or other entity like an LLC or partnership that you were an owner of ever sued or been sued before this case?  If so, explain all of them (who was the plaintiff, defendant and all of the claims for each of them).

11.              Have you ever had your deposition taken before?  How many times and when?  What kind of case?  Were you the Plaintiff or Defendant?

12.              What is your current address?

13.              What is your Social Security number?  I am not sure if you can ask this but the reason is if you get a judgment, there may be someone else whose name is the same and you will need to be able to distinguish the two persons when you seize assets.

14.              What is your drivers license number?

15.              What is your date of birth?

EDUCATION

16.              Are you a high school graduate?

17.              Could you tell me the year and school from which you graduated and spell them for me?

18.              Did you attend college?  What years did you attend?

19.              What was your major?  Did you obtain any post graduate study?  Where?  When?  What areas?

20.              As part of your post-graduate study, did you do any sort of special research or thesis or anything like that?  Did you have any area in which you specialized?

21.              How many credit hours did you accumulate in that specialization?

22.              What sort of papers or articles did you write regarding that specialization?  Can you recall the subjects of any other articles or papers you might have written?

WORK HISTORY

23.              Where are you employed?  How long have you been so employed?

24.              What are your duties at your present employment?

25.              What qualifications (education or experience) were needed for you to obtain your present employment?

26.              Can you give me a chronological description of your work and employment experience starting ______ (i.e., when you came to Las Vegas, 1960, etc., depending on appropriate circumstances).  (Make sure you have the deponent state the date that the job started, name of the company, type of business the company was involved in, how long the deponent held the job, the duties performed at that job and the date the next job started.)

DEPO PREP

27.              Did you review any documents before you came here today?  What documents?

28.              Did you meet with an attorney before you came here today?  Who and where and how long? Was anyone else present?

29.              Did you meet in person or on the phone with anyone else regarding this deposition before you came here today?  If so, what was said?

30.              Other than your attorney have you discussed the case with anyone prior to coming here today?  Who?  When?  Where?

31.              What did you discuss with each person?

32.              Go over in meticulous detail the circumstances of the transactions that led to the lawsuit.  Ask names, addresses and telephone numbers of all potential witnesses as the interrogation proceeds.  Ask what was said during each conversation as to the substance of each conversation with each person as well as what was observed or heard.  You should be looking for relevant evidence and therefore you should make sure the transcript that will be typed will contain complete sentences for your questions and their answers with correct spellings and addresses.

33.              With regard to documents, describe the document on the record before asking questions it.  Ask the deponent: "I show you Plaintiff's Exhibit 1, which is a copy of the joint check agree­ment between you and the general contractor.  Please read it to yourself and tell me when you are done."  When deponent is done, "Recognize it? I this the joint check agreement between you and the general contractor?"

34.             After each area of questioning, ask, “now is there anything else my client said on that date?”

35.             Are there any other document, etc. that you have that relate to our request for production. Where is it located?  Who has control of that document?