Deposition notebooks, procedural issues, preparing the problem witness, handling the tricky examiner, and more.

By Daniel P. Dain

Deposition Objections

Excerpted from How to Prepare for, Take and Use a Deposition

The key to successful deposition is preparation. Rarely will helpful information be volunteered by the witness. More often, it comes from asking the right questions, understanding a witness’s answers, reading the witness’s character, and asking good follow-up questions.

Preparation is also the key to defending a deposition. If you are prepared to defend a deposition, your objections will be both timely and appropriate, you will gain the maximum information possible concerning your opponent’s theories and strategies, and you will be able to prepare your witness. Similarly, if your witness is prepared, his answers will be accurate, and as helpful to your case as reasonably possible. Just as with any other phase of the litigation process, the quality of your performance in a deposition will depend more upon preparation than almost anything else.

This chapter will focus upon the steps you should consider in preparing to take or defend a deposition. Whether you follow each of the suggested steps will depend upon the situation. If the case is complex and the stakes are high, you will want to prepare thoroughly and leave little to chance. Conversely, once you have gained experience in taking depositions or where the stakes are not as high, some steps may be omitted.

§410   Preparing to Take a Deposition

In many respects, preparing for a deposition is like preparing for trial. In order to be prepared to take an effective deposition, you should know the legal elements of your case, the testimony expected from your own witnesses, and the relevant documents which prove or disprove your case. It is this initial preparation—the importance of which cannot be overstated—that helps you to choose the witnesses to be deposed and the subject areas to be explored. Rarely will you maximize your effectiveness by taking a deposition without preparation, merely on the hope that you will learn something interesting. To the contrary, the most interesting information gained from a deposition usually comes as a result of hard work.

Practice Tip: Create a Deposition Notebook

Especially for young lawyers, creating a deposition notebook that you bring with you to every deposition you take or defend can be a great resource and reassurance. Because you will be carrying it around with you, try to keep the notebook to one inch. Create an index for ease of use. Then insert tabs with information to which you might want easy access during a deposition. Start with the Federal Rules of Civil Procedure. Make photocopies of Rules 26, 27, 28, 29, 32 and 37. Then highlight those parts of the rules to which you might most readily need to refer, such as Rules 30(b)(6) (deposing an organization), 30(d)(1) (objections must be “stated concisely,” list of when appropriate to instruct witness not to answer), 30(d)(4) (rule regarding terminating a deposition for purpose of seeking court intervention), 32(d)(3)(A) and (B) (preservation of objections). You should also make photocopies of the Federal Rules of Civil Procedure of the states in which you practice most often. Highlight those key areas, if any, where the state rules differ from the federal rules. Make sure to check any local or court-specific rules as well.

Next, you should bring with you certain leading cases that you might want to show to opposing counsel if appropriate. Regardless of where you practice, because it has been so widely cited throughout the country, the case of Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) deserves to be in any deposition notebook. It includes the famous and oft-quoted admonition, “The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record.” After Hall, include in your notebook the leading case on deposition practice from each of the jurisdictions in which you regularly practice. If you practice regularly in California, consider copying and highlighting Stewart v. Colonial Western Agency, Inc., 87 Cal. App. 4th 1006 (2001); in Massachusetts, do not forget American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173 (D. Mass. 1985).

Finally, your deposition notebook may also include certain lists that you write out in advance that you will want to periodically review as a quick refresher, such as a list of guidelines to use when preparing a witness for a deposition and a list of common deposition objectives. Review the lists in this book for adoption to your particular practice.

§411   Defining the Key Areas for Examination

Early in the preparation process, spend some time defining and outlining the key areas for your deposition examination. As preparation progresses, you may find that your initial ideas have gotten lost amid a clutter of facts, legal theories and documentary evidence. Often, the time you spend in quiet contemplation, unburdened by documents, research, fact outlines, etc. is the most effective part of your preparation. Take this time to think creatively about the deposition and the questions that should be asked.

Sometimes the key areas not to cover in examination are as important as the key areas to cover in examination. This is particularly true when the objective of the deposition is other than discovery. In all depositions, however, there is always the potential that portions of your examination may be more helpful to your opponent than to you. Know how far to go in your examination in order to learn the know­ledge needed without leaving it organized for your opponent to carry away.

§412   Reviewing Key Pleadings and Applicable Law

One of the first steps in preparing to take a deposition is to review the pleadings and the law which applies to your case. One of the most important reasons for taking a deposition is to develop evidence for trial. Unless you are fully conversant with the factual and legal issues which will be tried, you cannot hope to accomplish this objective. If by now you have not researched the law applicable to your case, make it a point to do so. This work must be done in any event, and it is far easier to address an unexpected legal issue early in the case before discovery has been completed than it is just prior to trial. Many experienced lawyers make it a point to prepare jury instructions early in the litigation process just for this purpose. Until you know what issues will be decided by the jury, and how those issues will be phrased, it is difficult to know what you should seek to establish through discovery. Never forget that the law is your basic road map for depositions as well as for trial.

One useful approach to legal preparation is to list the legal theories and defenses which apply to your case and then the factual elements which must be proven for each. Each factual element can then be broken down into points of evidence which must be presented. Once completed, this list can guide you in your deposition questioning because you will be able to tie each deposition question into a specific element of proof relating to your case. Too often, the issues in a case become lost in the maze of facts and it becomes difficult to distinguish between that which is relevant and that which is not. Your legal/fact outline will help you bring these matters into clearer focus and will give you a leg up on your opposition. You should have an objective or reason for every question that you ask.

§413   Reviewing Prior Discovery and All Factual Information at Your Disposal

The more you know about the facts at issue in your case, the better your deposition questioning will be. As the witness answers your questions, you will more readily understand how his testimony fits into the big picture, and whether it is consistent or inconsistent with other information that you have. You will also be far more effective in your follow-up questions.

By the time you start depositions, you should have completed as many interviews of your client, representatives of your client, and other cooperative witnesses as possible. You should also have reviewed every relevant document at your disposal. In essence, you must try to become as knowledgeable about the facts as the witness you intend to depose. Often the witness will not have conducted the same thorough review and, as a result, will be at a significant disadvantage. You should also review the transcripts of all the depositions that have been completed in the case so far to learn what other witnesses have said about the witness for whose deposition you are preparing.

Often you will have a list or summary of all of the documents involved in the case, and perhaps all interrogatory answers in your computer base. Particularly as to documents, it provides an easy way to “pull up” the documents that you may want to review with the deponent. For example, a typical document base will include fields for date, author, recipients, source and summary. Thus, you can quickly pull up the documents which your witness authored or received, or which the author provided to you (source), or on other key points. See Chapter 11. This ability to retrieve and analyze your information prior to depositions will be of tremendous help in the preparation for the deposition. You can also utilize the computer, if your database is sufficient, to search for every document in which the witness’s name appears. The Internet can also be an immensely useful resource while preparing to take a deposition. If the witness works for an organization, look to see if the organization has its own website. Review media sources available on the Internet that address the organization or the witness him or herself. If the witness is quoted in a source that you have found on the Internet, print the source out, then plan to mark it as an exhibit during the deposition and ask the witness to confirm the quote and his or her present agreement with it.

§414   Preparing a Chronology of Key Fact Events, a Cast of Characters, and Witness Files

Once you have begun to understand the facts at issue in your case, prepare a chronology of key events as well as a cast of characters. Your chronology will serve as an outline to organize facts and as a handy reference guide. Similarly, a cast of characters can provide invaluable assistance when your case is complicated or involves a number of different individuals. This cast of characters should list all persons involved with a brief summary of their connection with the subject in dispute. Recognize that these documents will be revised and expanded constantly as discovery progresses. By the time trial approaches, they will be of invaluable assistance to you.

Also consider establishing witness files early during your preparation. In each, include copies of documents relating to that witness, any interview memoranda pertaining to that witness, discovery answers pertaining to the witness, and a list of subject areas for possible examination. As both formal and informal ­discovery progress, you should add to your witness files and each will become more and more complete. By the time you are ready to take depositions, you will find these files invaluable for your preparation. The chronology of key events will be particularly helpful to you in keeping the facts organized during the course of the deposition.

That chronology puts all of the key relevant facts into an organized form. It will force you to focus on the events on which the deponent should be examined and will assist you in defining the interrelationship of events. In preparing the chronology, particularly when it is based upon documents, consider including key language from the document, as well as key statements from earlier depositions or statements of witnesses.

§415   Discussing the Upcoming Deposition With Your Client and Cooperative Witnesses

Take the time to speak with your client and other cooperative witnesses about upcoming depositions. They will often offer insights about the deponents which will help guide your preparation. In addition, their knowledge of the facts will help you to better understand your case. Where appropriate, take the time to explain your legal theories to these individuals. It may help them in revealing relevant facts. At the least, it will further involve your client or your witnesses in the preparation of the case and may make them feel more comfortable with the litigation. This can pay dividends, both in terms of client relations and your effectiveness at trial.

One tip that can be useful in preparing to take a deposition is to ask your client, or other individuals familiar with the witness for whose deposition you are preparing, to write a list of the five or ten questions that definitely should be asked. If you are part of a team of lawyers working on a particular case, ask each member of the team for his or her list of five or ten must-ask questions.

§416   Discussing the Upcoming Deposition With Opposing Counsel

Also consider discussing the upcoming deposition with the opposing counsel, who might wittingly or unwittingly provide you with valuable information. In some cases, you may need to determine who has relevant knowledge, and opposing counsel may direct you to the appropriate witness. Moreover, during the discussion your opponent may reveal information which could prove helpful to you. Opposing counsel will not know for sure what information you have and what information you lack. Be careful, however, about relying too heavily upon opposing counsel, either as to selection of witnesses or as to a particular witness’s knowledge.

§416.1   Visit Site

In cases where a physical location is pertinent, it is important, if possible, for you to visit the site before beginning factual depositions. Thus, before deposing a witness to an automobile accident, drive by the site of the accident at the time of day when the accident occurred, then get out of your car and walk around, observing the flow of traffic, the glare of sunlight, and the existence of any obstacles to sight lines. In another example, if you are planning to depose a plaintiff property owner who has brought suit to halt a development, visit the site of the development. Walk from the development to the plaintiff’s residence. Observe shadow and wind conditions and whether the development will block any views. What is the level of noise in the neighborhood? If you visit during the day, consider coming back at night as well. This first hand experience will help you to articulate questions during the deposition and to develop intelligent follow-up questions as well.

§417   Defining Your Objectives

Once you have completed your preparation, you should begin to define, or redefine, your objectives for each deposition you plan to take. There are many reasons for taking a deposition, including learning what a witness knows about the case, eliciting specific information, obtaining helpful admissions, pinning down a witness, and evaluating his demeanor. Once you have a strong idea of the legal issues in your case and know as much about the facts as possible, you can relate these to your purpose for taking a particular deposition. As you begin to frame questions, you can then decide to proceed chronologically, as you might in a deposition taken to preserve testimony for trial, or in a disorganized fashion, in the hopes that you will gain favorable admissions.

§418   Preparing Exhibits for the Deposition

As part of your predeposition planning, exhibits which will be used should be analyzed and organized. If you are sure of the order in which you intend to introduce exhibits during a deposition, or if you think that time will be in short supply and you do not care whether the exhibits are marked in the order in which they are presented, go ahead and pre-mark the exhibits. You can get exhibit stickers from court reporters. Otherwise, plan to have the court reporter mark the exhibits as they come up during the deposition.

Every experienced lawyer has developed a personal technique for organizing the exhibits to be brought to the deposition. For example, some lawyers make binders of the exhibits in the order in which they are likely to come up. Other lawyers make folders for exhibits, with working copies on top and clean copies behind. The folders can be carried in a redwell or gusset, or, if voluminous, in boxes.

At a minimum, you should bring three copies of each exhibit to the deposition. A clean exhibit should be brought that is either pre-marked or given to the court reporter during the deposition to mark. The marked exhibit will be shown to the witness. You should bring a second clean copy of each exhibit to give to opposing counsel. If you do not have an extra copy for opposing counsel, you are inviting opposing counsel to look over the witness’s shoulder, making it easier for opposing counsel to subtly signal to the witness, for example, by pointing out provisions in the exhibit to which the witness should pay attention. If there are more than two parties at the deposition, it is a courtesy to bring an extra copy of each exhibit for each counsel of other parties present at the deposition.

You also want to bring your personal working copies of each exhibit. You should highlight provisions in the exhibit about which you want to ask the witness, and make marginal notes of follow-up questions. However, make sure to clearly label your working copies of exhibits as such so that you do not accidentally mark them as exhibits, thereby revealing to the witness or opposing counsel your mental impressions. You would be surprised how easy it can be in the middle of a deposition to confuse your working copy with the clean copies you intend to give to the witness and opposing counsel, particularly if the highlights and marginal notes on your working copy appear after the first page. Thus, you should write “Working Copy” clearly on the first page of your personal copy of each deposition exhibit.

If an exhibit was previously marked in a prior deposition, you should refer to the previous designation rather than “remarking” the exhibit. This will eliminate duplication and confusion as to exhibits. Prepare an index of the deposition exhibits in both numerical (or alphabetical) order and chronological order. For example:

Lorton v. Samuelson

Numerical Deposition List

Exh. #      Date                        Description             

1         Nov. 20, ‘89                   Letter, Smith to Thompson re re-­quest for adequate

2         Nov. 28, ‘89                  Memo, telephone conferencewith Smith and Lorton
                                                 regarding rescinding agreement

3         Nov. 8, ‘89                    Agreement, Smith/Thompson re purchase of widgets

Lorton v. Samuelson

Chronological Deposition Exhibit List

Date                   Exh. #              Description

Nov. 3, ‘89          5                   Letter, Smith to Thompson re proposed purchase

Nov. 8, ‘89          3                   Agreement, Smith and Thompson, re purchase of widgets

Nov. 20, ‘89         1                   Letter, Smith to Thompson re  request for adequate assurances

§419    Consideration of Opposing Counsel

When you prepare to take a deposition, be sure to consider the opposing counsel. Recall your own prior experiences with him. Ask your partners, associates and friends about their experiences with him. What is his conduct during deposition? Does he object frequently? Does he attempt to use narrative objections? Does he object to non-objectionable questions? Does he try to coach the witness? Is he a publicity seeker? Does he typically cross-examine? By knowing opposing counsel, it will give you a better idea of whether you should seek any protective orders prior to commencing the deposition. Similarly, it might influence the location at which you want to take the deposition, or whether you need to know the availability of the judge on the day of the deposition to determine “problems” on a forthwith basis. Lastly, it will give you an idea of what to expect during the course of the deposition.

In some cases, however, consideration of opposing counsel should be eliminated or minimized; the deposition process should be tailored to the witness, not his lawyer. Don’t allow opposing counsel to dictate your deposition strategy or tactics. Thus, consider opposing counsel, be prepared for his tactics and methods, but you define your deposition.

§419.1Creating a Deposition Outline

Once you have done your due diligence on the facts as already available to you and the law, including identifying the legal elements of each cause of action and affirmative defense, and you have organized your exhibits, you can sit down to start putting ideas to paper in the form of an outline. As a general rule, it is best not to write out every question. Doing so will tie you too closely to your outline, making it harder for you to truly listen to the witness and to act nimbly if the witness’s answers invite new, unanticipated lines of inquiry. Rather, write out word for word only those questions where there is some importance to exact phraseology, such as where you are to establish the absence or existence of evidence on a particular element of a cause of action in anticipation of a motion for summary judgment.

A good practice is to start the outline with certain lists to which you can continually refer to during the deposition or during breaks to make sure you are on track. Thus, you may want to write out your goals for the deposition. For example, if you are deposing a percipient witness, goals may include establishing bias, locking in testimony, exploring barriers to perception, such as vision problems, and uncovering prior inconsistent statements. You may also want to write out a list of the general topics to be covered, to be used as a checklist at the end of the deposition to make sure that you have covered what you need to have covered.

You should also be cognizant in preparing your outline of certain strategic considerations. Thus, in federal court where depositions are limited to seven hours, make sure that essential topics are covered early enough in the deposition so that they are not at risk of getting cut off.

Practice Tip:

Working in a Team—Writing a Deposition Outline for Another

If you are a young lawyer who is part of a team, you may be asked to write out a deposition outline for another member of the team to use. Because every lawyer’s style is different, ask the assigning attorney, or other attorneys who have worked for the assigning attorney, how he or she likes the outline organized. Some experienced lawyers prefer simply a short checklist of topics to be covered and a stack of exhibits to be used; others will want more detail.

§420Preparing to Defend a Deposition

Just as the taking of a deposition has definable objectives and purposes, so too does the defense of a deposition.

These purposes and objectives include:

  • To ensure that the witness’s testimony is a truthful and accurate answer to the questions asked.

  • To protect the witness from improper activities of the examiner, including improper questions, harassment, etc.

  • To “protect” the record by making appropriate objections where not reserved.

  • To prevent disclosure of privileged information.

  • To present testimony information in a manner most helpful to your client’s cause, insuring the testimony is truthful and accurate.

  • To cross-examine the witness to bring out additional facts, under certain circumstances.

§421Procedural Issues

The defending lawyer’s activities are triggered by a notice of deposition, a subpoena served on your nonparty client or your agreement to produce a witness for deposition. In the first two cases, first consider whether the deposition was properly noticed before moving on to substantive issues:

  • Has discovery been stayed, i.e., lack of a discovery planning conference under Rule 26(f)?

  • If a discovery order has been entered, is the notice in compliance?

  • Is the location of the deposition objectionable?

  • Was the notice served sufficiently in advance of the deposition? Check local rules.

  • If documents are requested, was sufficient notice given?

  • Do you need to meet and confer with opposing counsel in preparation of a motion for protective order? Is a protective order required? Has proper notice been afforded under rules applicable to your jurisdiction?

  • If it is a Rule 30(b)(6) notice of deposition, are the subjects defined with reasonable particularity?

  • If a video or audio deposition is indicated in the notice of deposition, are you permitted to object? Is a stipulation or court order required with the taking of a video or audio deposition?

  • Do you want to designate an additional method of recording a deposition, i.e., stenographically, video- or audiotaped?

  • In addition, if a subpoena was served:

  • Was the subpoena issued by the proper court?

  • Can the witness be compelled to appear at the designated location?

  • If a subpoena duces tecum was served, should any objections be filed pursuant to Rule 45?

Procedural matters should be resolved immediately—before the deposition, if possible. Start by trying to resolve the matter with opposing counsel. File a motion with the court only as a last resort. As a general practice, you should hesitate to assert technical objections that do not prejudice you, your case or your client.

Once you have determined that the notice is procedurally valid, begin preparing to defend the deposition. In many ways preparing to defend a deposition is more time-consuming than preparing to take one. When you take a deposition, you have control over the topics which will be covered. When you defend, you can only anticipate the subject areas of the testimony, opposing counsel is in the driver’s seat. Moreover, you must also prepare your witness to be deposed. Both steps are critical if your defense is to be successful.

You should also consider the tactics of the examiner. For example, some examiners always want an opportunity to review the transcript of a deposition, and then re-examine the witness as to certain areas—in essence, depose the witness twice, which generally is not allowed. How do they do this? By scheduling a deposition for less than the anticipated time. For example, if the deposition is anticipated to be somewhat more than a day, they schedule the deposition for one day, and at the end of the day, “recess” until a mutually convenient day thereafter. For some examiners, there never is a convenient day thereafter.

To foil that approach, as defending counsel ask the examiner how much time he anticipates needing, and insist that 50% more time be reserved “just in case.” At the end of the reserved time, or the anticipated time if that’s all the examiner would agree to, consider recessing and moving for a protective order. Judges are becoming more worldly about improper deposition tactics.

Of course, the length of depositions can also be handled in a scheduling conference. Additionally, in federal court where depositions are limited to one day and seven hours by Federal Rule of Civil Procedure 30(d)(2), the risk of an improper suspension is eliminated.

§422   Preparing Yourself to Defend the Deposition

Your preparation to defend a deposition involves many of the same steps as your preparation to take one. Viewed from the perspective of a defending lawyer, the steps include:

  1. Try to determine why the deposition is being taken. What subject areas will your opponent cover and what is he trying to accomplish? Will this deposition be used for trial or is it merely for general discovery?

  2. Review the pleadings and the law to determine not only what you must prove but what your opponent will be trying to prove through the deposition.

  3. Review prior discovery and reacquaint yourself with the facts of the case.

  4. Review all documents relating to the case and assemble those which relate to your witness and which may be used as exhibits.

  5. Outline the key areas of anticipated examination and consider whether objections are applicable. Conduct research regarding objections which may be raised during the deposition.

  6. Consider the strengths and weaknesses of your deponent. Work out a plan for preparing your deponent for his deposition.

The greater your preparation, the more effective you will be in defending the deposition. Knowing your case, your opponent’s case, and the witness is the only means to this end.

Practice Tip:

Prior Statements

Do not overlook the fact that your witness may have given a prior statement concerning the subject of the litigation. You should satisfy yourself that the other party does not possess a statement by your witness.

Rule 26(b)(3) allows for a party to demand the production of a party’s prior statement. Similarly, a nonparty may make a similar request. If the request is refused, a motion under Rule 37(2)(4) is authorized.

§423   Preparing to Assert Privilege

A potential, crucial area of your preparation to defend a deposition is your consideration of what areas of the potential examination may invade privileged knowledge. If you do not timely and consistently assert the privilege, you may be deemed to have waived the privilege. Similarly, failure to instruct the witness not to answer means the examiner may have the full benefit of the testimony (except using it at trial), even if you objected to each question. The privileges applicable to depositions are discussed at §760 and subsections thereafter.

Consider, as a checklist, whether any privilege might be applicable to any areas of potential examination of your deponent:

  • Have you had any discussions with the deponent?

  • Did the deponent during the time of the events in issue have any discussions with an attorney?

  • Is the deponent potentially subject to any criminal proceedings?

  • Has the deponent had any involvement with or knowledge of work product of you, your client, or other persons acting in behalf of your client?

  • Has the deponent had any discussions concerning the events in issue with his spouse, clergy, physician, accountant, psychologist (in their professional capacity)?

§430Preparing Your Witness to Be Deposed

A serious mistake made by beginning practitioners is to lead a witness into a deposition without thoroughly preparing him for the experience. Not only will the witness be apprehensive and uneasy about the process, he may forget many of the relevant facts and have little or no understanding about the legal theories which make those facts relevant. In short, a sure way to lose your case is to neglect this important part of the preparation process.

Your goals in preparing your witness include the following:

  • to familiarize your witness with the dispute;

  • to familiarize your witness with the deposition process;

  • to familiarize your witness with the legal theories at issue in the case;

  • to review the relevant facts and documentary evidence with your witness so that he will be prepared to relay his knowledge accurately;

  • to help the witness in dealing with opposing counsel’s method of questioning;

  • to prepare your witness to be effective in giving testimony.

The following sections will focus on techniques for preparing your witness. In reviewing them, keep in mind that their purpose is not to assist the witness in fabricating his testimony. Rather it is to enable your witness to tell the truth as effectively as possible. If the witness is nervous or doesn’t understand what is being asked, his testimony may be mistaken and justice will not have been served. Although your witness preparation may not be discoverable, conduct it in such a fashion that if it were, it would not cause you any discomfort or embarrassment.

Practice Tip:

Preparing the Witness for Questions that Seek to Establish a Foundation for Discovering Witness Preparation Materials Through Federal Rule of Evidence 612

Courts have interpreted Federal Rule of Evidence 612 as requiring the production of any document that was used during deposition preparation to refresh a deponent’s recollection. Further, while courts have recognized that the selection of which documents to show a witness during deposition preparation reflects the attorney’s mental impressions and hence is protected by the work product doctrine, that protection may be trumped when the documents are used to refresh recollection. For a good discussion of the intersection between Federal Rule of Evidence 612 and the work product doctrine, see Nutramax Labs., Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998) (finding that the policy of protecting attorney mental impressions that may be evident from the selection of documents to use in witness preparation is trumped by Rule 612).

The obligation to produce documents used to refresh a witness’s recollection creates a conundrum for the attorney preparing a witness for a deposition. What if there are a few documents that worry you—you want your witness prepared to answer questions about them, but you do not want to flag them for your opponent as being important? In short, the challenge is to figure out how to comply with the obligations of Rule 612 without revealing your mental impressions.

Since it is incumbent on the attorney taking the deposition to lay a foundation through the deposition examination for discovering which documents were used to refresh recollection, the challenge of Rule 612 for the attorney defending the deposition is met through witness preparation. There are a few rules of thumb and tricks of the trade.

First, while some courts have found that Rule 612 does not require the production of “core” work product, as a matter of caution, avoid showing the witness documents that you created for use in the deposition process, such as case chronologies and mock questions and answers. You should not feel inhibited to use such work product documents as a basis for your witness preparation, as long as the witness is your client, since your conversations with the witness will be protected by the attorney-client privilege, but just do not show the witness the documents from which you are working. See, generally, In re Atlantic Financial Management Securities Litigation, 121 F.R.D. 141 (D. Mass. 1988) (noting that “core” work product deserves the strongest protection, but that “factual work product,” e.g., summaries of facts, benefits from a lower level of protection from disclosure under Rule 612).

Second, if the entire universe of documents is relatively modest, show the witness all of them and then prepare the witness to answer, if asked, that the witness cannot distinguish which out of all the documents reviewed did or did not refresh recollection. As a result of this answer, you may be required to produce the entire set of documents shown to the witness, but the examining attorney will have gained no insight into your mental processes since the documents used to refresh recollection is coextensive with all the documents in the case. See, e.g., International Insurance Co. v. Montrose Chemical Corp. of California, 231 Cal. App.3d 1367 (1991) (“[The witness] used the documents to refresh his memory with regard to his testimony … and [the party] therefore became obligated to produce them. No further ‘foundation’ was required and, in this context, there was no need (and there was no way) to establish which of several documents actually refreshed [the witness’s] memory on a particular point.”); but see, e.g., Jos. Schlitz Brewing, Co. v. Muller & Phipps (Hawaii), Ltd., 85 F.R.D. 118 (W.D. Mo. 1980) (where witness testified that he had “looked at” large correspondence file in preparation for his deposition, but had provided no further specificity, Rule 612 did not require production of the whole file). This approach obviously does not work in high document volume cases where it is simply impractical to show the witness every document in the case.

Third, in voluminous document cases where you are worried about a few documents, you will need to establish the witness’s independent memory before showing the document to the witness. Talk through the issues that the documents in question raise and only after you have established that the witness has a recollection independent from the document should you show the document to the witness. Then you need to prepare the witness not to identify the document in question as one used to refresh recollection.

§431   Introducing Your Witness to the Deposition Process

Most of us will never experience being deposed, or fully understand the anxiety of being called upon to give sworn testimony through potentially rigorous questioning by a stranger with an obvious motive to trip up, trick or discredit you. Most witnesses will have little or no exposure to civil litigation, and, in particular, the discovery process. Most of their perceptions of the litigation system will have been shaped by what they have seen on television or in the movies. Clearly, no one wants to be the target of Perry Mason’s blistering cross-examination, or to be made out to be a fool. For that reason, the first step in preparing your witness is to help the witness to understand and to be comfortable with the deposition process.

There are as many ways of approaching this problem as there are practicing attorneys. Some give their witnesses written handouts which explain about the deposition process. Others show them videotapes which explain the procedures, illustrate common mistakes and show a mock deposition. You should consider either of these approaches as a supplement rather than a substitute for the time you spend with your witness making him feel comfortable with the process.

During your preparation you should cover the following points with your witness:

What is the dispute all about?

If the witness is your client, he should already know the basic ­nature of the dispute. However, other witnesses may not know anything about it. They will need to have a basic understanding of the dispute to be at ease, to understand the context of questions, to effectively respond to questions, and to understand their role as ­witnesses.

Why am I being deposed?

Without a doubt, this is the first question that your witness has asked himself, and it is often the one which causes the most trepidation. By addressing it in a straightforward fashion, you will both gain the witness’s confidence and help to place the deposition in better perspective. While you will go into greater detail later regarding the questions which will likely be asked, documents which will be used, etc., a few minutes spent on the big picture and how this witness fits into it is well worth the effort involved.

Why is a deposition being taken?

Very few nonlawyers really understand the reason for a deposition. If this is a discovery deposition, you will want to explain that it has a two-fold purpose: obtaining information about the case and pinning your witness down to specific testimony. What your witness says and how he says it is important because it may impact settlement or may be used against him later at trial.

What are the mechanics of a deposition?

Many witnesses think that a deposition will be held in a court, with the judge and jury present for the event. Take the time to explain to your witness just how and where a deposition is conducted. Explain where the deposition will be held and who will be likely to attend. Using your own conference room, show the witness how people will be seated and where the court reporter will be. Explain the court reporter’s function. Tell the witness he is free to take breaks and to use the restroom whenever necessary and that coffee or other refreshments will be available upon request. All of this appears basic and mundane to you, but it will not be to your witness. Help the witness get a mental picture of what he will have to face and he will be far more effective in giving his testimony.

How will questions be asked?

Many witnesses view depositions as a free-for-all, with questions coming from all sides. Explain to the witness how the question and answer format works and how it differs from everyday conversation. Inform the witness of how attorneys take turns in asking questions and your role in defending the deposition. You might want to show the deponent a deposition transcript taken earlier in the case or from another case. Again, if your witness is comfortable with the process and feels like he or she understands his or her rights, the deponent will be much more at ease in giving testimony.

What happens if an objection is made?

As a result of television, witnesses know that lawyers make objections and often engage in heated arguments. Explain how the objection process works and how the witness fits into the process. Let your witness know that some objections are made for the record and should not otherwise impede his testimony. Also explain that in some cases, the objections are not merely for the record and may be followed by advice or instruction not to answer the question. Let your witness know that he should feel free to rely upon your advice no matter how loud or threatening opposing counsel may get. If your witness knows he can rely upon you and does not have to defend himself from attacks by opposing counsel, he will be much more at ease should such disputes arise. Explain to the witness that certain objections, while made for the record, may be clues to the witness that the question may have hidden meanings. As a result, the witness should carefully listen to your objection, before answering, so that he or she completely understands what is being asked.

What if I don’t understand the question?

Your witness will also be worried about his performance during the deposition. Emphasize that his only duty is to appear and answer questions truthfully to the best of his knowledge. Explain that if he doesn’t understand the question, he should ask that the question be repeated or rephrased. Since a witness is not required to respond to a question that he or she does not understand, explain to the witness that deponents have a certain measure of power over the examining party. A response that the question “is not clear” cannot only be used to clarify a potentially ambiguous question, but also can be used to deflect questions that the witness may well desire to avoid answering, thereafter shifting the burden upon the examining party to ask different questions to extract the information. Similarly, the witness should understand what is meant by “off the record” and how he or she should act during those periods.

What if I make a mistake in giving testimony?

Most of us fear giving the wrong answer or making a mistake and it is only natural to do so. You should explain that mistakes are inevitable even though one has prepared fully. Let him know that he is free to correct his testimony at a later time during the deposition if he realizes that an error has been made. Also explain that he will have an opportunity to review his transcript and make corrections.

§432   Techniques for Preparing Your Witness to Answer Deposition Questions

Once you have covered the basics about the deposition process with your witness, turn to a discussion about techniques for answering questions. While your goal is simply to have the witness tell the truth, there are techniques which will help in reaching this goal. Truth well told is much more preferable to “truth” cloaked with confusing and potentially conflicting responses. A deposition is an unusual event for most people and its procedures may hinder rather than help your witness give truthful and accurate testimony. Spend time with your witness helping him or her to understand the techniques for telling the truth.

The following admonitions are designed to accomplish that result. Discuss them with your client.


No one can accurately and honestly answer a question if he has not heard it. Most of us are fair listeners, but to give accurate answers—not simply accurate statements, but accurate answers to the specific questions asked—you must hear the question. If you have not heard it, you may ask that the question be repeated. Often when an objection is made, with or without subsequent colloquy of counsel, the witness may well have forgotten the wording of the pending question, or perhaps as modified by the statements of counsel into the ending question. If there is any question about what was asked, request that it be repeated before answering.


Your answer to a question will not be accurate if you do not understand the question. Thus, do not answer the question until you fully understand it. You should not hesitate to state that you do not understand the question, or that you do not know the meaning of a particular word used in the question. Ask the examiner to rephrase the question or explain it. In many cases, the reason why you don’t understand the question is because the examiner did not properly word it.


Once you have heard the question and understand it, think about it before giving your answer. Don’t try to see how fast you can answer the question and don’t shoot from the hip. The goal is to give accurate, honest answers, and you should take all the time necessary to think about each question before giving your answer. While long pauses between questions and answers may be undesirable at trial, a deposition transcript rarely indicates a pause. By taking time to think, you will give a better answer and your lawyer will have a chance to make an objection if necessary.


Listen to any objections to the question that your attorney makes. Some objections, such as vagueness and ambiguity, may be a subtle hint that the words that the deposing attorney is using are susceptible to several meanings. Inform the examiner that his or her question is not clear. Request the deposing attorney to rephrase or explain the question. Often, the reason why you did not understand the question is because the examiner did not properly word it or define the term utilized in the question. Your attorney’s objections all have purpose and meaning; careful consideration may save you from stating damaging testimony. In particular, you should go over with the witness the importance of listening very carefully to the predicate assertions, if any, to each question. These predicates tend not to be in the form of a question and if the witness answers only the question at the end, the answer will be taken as assuming the truth of the predicate. Thus, if the question says: “At the June 12 meeting, what did you say?” and if the witness answers, “I said …” then it will be assumed that the witness agrees that there was a meeting on June 12. Thus, it is important for the witness to listen carefully to the whole question and if the witness does not agree with the predicate to say so.


Our legal system is an adversary system, and your objective is to accurately answer each of the questions asked, not to provide all of the information you think the examiner might want to know. Hence, a cardinal rule is to answer only the question asked, and not to ­volunteer comments or information. A defending attorney’s nightmare often begins when the deponent continues, after answering a question, “and you may be interested to know ….”

In certain circumstances, you may want the witness to violate this rule. If you have a particularly effective witness, you may want him to volunteer regarding favorable facts. For example:

Q.   Isn’t it true that on July 28, 1989, you concluded that Mr. Jones should be fired?

A.   Yes, but only if the Employment Committee, after reviewing the reports, concurred.

Beware that it is always dangerous to advise a witness to give more than the shortest accurate answer. When in doubt, the witness should not volunteer information.


You should advise every witness you prepare for a deposition not to be afraid of silences. Silence during depositions can be a deadly trap! This is true because in normal conversation, people feel uncomfortable with silence and feel obliged to say something to fill in the gaps in the conversation. This is when the undisciplined witness will volunteer information not in response to any pending question. You need to educate the witness during preparation that depositions are not conversations and silences are part of the process. Once the witness has truthfully and fully answered the pending question, the witness should stop talking. If it then takes the examiner a few moments to think up the next question, the witness should sit silently.


The most important rule in the deposition process is to answer truthfully and accurately. This may seem like belaboring the obvious, but even an honest person may run afoul of this warning if he is not careful. For example, if you think you know the answer but are not sure, say so or you will not be giving accurate testimony. An answer cannot be truthful if it is not properly qualified to show the source and certainty of the information given. If you are relatively confident of your answer, feel free to say so. If you do not know the answer, say so. The goal is to have the record reflect the true state of your know­ledge with respect to the questions asked, nothing more and nothing less.

§432.1   Homework for the Witness’s Preparation

You can anticipate problems if your witness, particularly if he is a party, looks to you to do all of his preparation for the deposition. You cannot prepare a witness for deposition; at most you can assist the witness in his own preparation for his deposition. Indeed, in many circumstances you should assign the witness homework in preparation for his deposition.

The work that you might assign to a witness in preparation for his deposition (assuming the witness is friendly) might include:

  • A review of all answers to interrogatories that the witness has signed. Obviously, answers to interrogatories provide a fertile ground for questioning. Reaffirm that there is in fact a basis for the answers given. Should any supplement be prepared?

  • Review of all facts, statements or affidavits given. The need to be familiar with past statements, and to be alert as to whether any correction should be made prior to the deposition, should be a matter the witness in the first instance can handle. Note, however—does opposing counsel have these documents or are you willing to produce them?

  • A review of all documents upon which the witness might be questioned.

  • A review of the complaint and answer.

Keep in mind, however, that all documents reviewed by the witness in preparation for his deposition may be subject to discovery.

§432.2   Emphasize the Form of the Answer to the Question

Even if the witness has followed most of the rules for being deposed, he can nevertheless give misleading or inaccurate answers unintentionally. Of course, in the first instance, he should answer each question yes or no, if he is responding to a yes or no question. A yes or no question is a prime area where witnesses tend to volunteer. If the question calls for a yes or no, and the answer is more than that, the witness is volunteering.

Similarly, to a question that does not call for a yes or no answer, the witness should be careful to think precisely what information the question calls for, and in his answer provide only that information.

Witnesses sometimes get into habits of using phrases. For example, when asked whether he did something, the witness may say, “I am sure that I did.” Does that mean that he recalls doing it, that he assumes that he did it, that he guesses that he did it, or that he followed some logical path to deduce that he did it? Again, it is important that the witness accurately convey the answer, and if it is anything other than personal direct knowledge, to communicate the basis for the answer.

§433   Using a Checklist for Witness Preparation

Some lawyers prefer to go through an extensive checklist of points for discussion with their witness. One benefit of using this approach is that it provides some assurance that you will not leave out an important point. One of the problems with this approach, and with any approach, is that your witness is only likely to recall and put into use a very few points. Whatever approach you choose, make sure that your emphasis is on your most important points because the others may fall by the wayside.

Consider discussing the following admonitions with your witness:

  1. Listen to the question. If you didn’t hear it, ask that it be ­repeated.

  2. Understand exactly what the question is. If you don’t understand, ask that the question be rephrased.

  3. Think about the question. Pause before you answer.

  4. Answer only the question and answer concisely—don’t volunteer. Your role is to answer only the question asked, not to volunteer what you think the examiner wants to know.

  5. Don’t guess or speculate. If you do not know the answer, the only truthful answer is “I do not know.”

  6. Answer only as to facts of which you have personal knowledge, unless asked for information given to you by other persons.

  7. If necessary, qualify your answer (“I am not totally certain.”).

  8. Ask for documents, if it would make testimony more accurate.

  9. Read carefully all documents given to you. Take your time.

  10. Do not get angry. Some lawyers try to cause you to lose your temper in the hope that you will not think clearly and will make incorrect statements.

  11. Do not feel you need to memorize any facts.

  12. Do not take any notes or documents to the deposition. Anything you take may be subject to discovery.

  13. Set your own pace—don’t let the speed of the examiner’s questions dictate the speed of your answers.

  14. Listen to objections—they may tell you why the question is tricky.

  15. Make each question and answer stand alone. If read out of context at trial, it should convey accurately your intended testimony.

  16. Do not testify as to what you assume occurred—only what you know occurred.

  17. Do not be reluctant to admit that you have discussed your deposition with a lawyer—there is nothing improper about that.

  18. Don’t try to hide embarrassing facts. If asked if you were fired, and you were, answer yes.

  19. A document says what it says—not what the examiner says that it says.

  20. Do not discuss the facts of your anticipated testimony with anyone else; it may create confusion as to what you know and what you have been told, and the discussions may be discoverable.

  21. Answer audibly, and not with nods or shakes of your head.

  22. Straighten out confusion.

  23. Give accurate estimates (time, speed, distance).

  24. Clarify multiple meanings. Beware of a question that assumes a fact. Watch out for alternative questions.

  25. Don’t chew gum.

  26. Don’t be defensive.

  27. Don’t lose your temper.

  28. Be courteous.

  29. Avoid wisecracking and joking.

  30. Don’t be reluctant to admit to discussions with your lawyer.

  31. Don’t answer questions about managing the lawsuit.

  32. Beware of the “have you told me everything” question.

  33. Tell the truth.

If this “long list” of rules is to have any meaningful impact on the witness, most of them need to be illustrated, and then practiced by the witness under sample questioning. Remember, however, most witnesses cannot and many should not attempt to remember more than a few key rules.

§434   Refreshing Your Witness’s Recollection

After focusing on the mechanics of depositions and upon techniques for answering questions, review with the witness his substantive knowledge of the case. Many attorneys conduct their own interview of the witness and handle it much like a deposition, but without the formality of one. There are two advantages to this approach: it further educates you about your case and it stirs up the witness’s memory just prior to the time he must give testimony. A witness who is about to be deposed will normally give you his full attention and be willing to sit down to discuss his knowledge in detail and to review relevant documents.

Consider covering the following during the course of your preparation:

  • Outline the subject areas the examination will cover.

  • Outline the subject areas your cross-examination will cover.

  • Review documents which you anticipate the examination will cover.

  • Interview the witness concerning his knowledge of the subject areas on which he may be examined and cross-examined.

  • Discuss how to answer the “tough” questions accurately and effectively.

  • Ascertain from the witness what knowledge he has that he believes is adverse.

During the course of your preparation, make sure that you do not show your witness anything which you do not want the opposition to see and which thereby might become discoverable. See Federal Rule of Evidence 612.

§435   Conducting a Practice Examination

It may be helpful during the course of your preparation to spend time doing a practice examination. This may amount to interposing a few typical deposition questions and discussing your deponents responses as you proceed through your preparation. In the alternative, you may conduct a formal practice deposition and ask another lawyer to play the role of opposing counsel. You may even want to consider videotaping your practice examination in order to visually demonstrate to your witness those areas of his or her testimony or overall demeanor that need further refinement. Your level of formality may depend upon the significance of the deposition and the stakes involved. However, even informal practice may be helpful to your witness.

In most cases, there are some critical areas of testimony where every word counts, e.g., the milliseconds before impact, the precise words constituting acceptance, the words constituting verbal harassment, the location and frequency of pain, the certainty with which economic projections of loss are made, the description of a party’s decision-making process, etc. It is good practice to ask these questions to the client well before a deposition and listen carefully to the response, which can sometimes be surprising.

Does your client dramatically overstate damages or understate them out of existence? Is the client overly precise to the point of absurdity (qualifying and explaining everything)? Or is your client hopelessly general and reluctant to give direct answers? Only by practicing can you learn the client’s style and make appropriate suggestions. See, Schulman, “Coaching Witness Credibility,” The Practical Litigator, January 1993.

§436   Representing the Witness

During his deposition, the witness may be asked if he is represented by counsel. If the witness is your client, or an officer, director or employee of the client, the answer is usually yes and you should instruct your witness to that effect. If, however, the witness is not your client, or affiliated with your client, take the time to discuss with him whether he will appear with separate counsel, without counsel, or with you acting as counsel for the purpose of the deposition. You may represent a witness for the purpose of a deposition even though your client and not the witness pays your fees. The advantage of appearing as counsel are several-fold and include the fact that it may clothe your preparation session with the attorney-client privilege. It also enables you to make objections on behalf of the witness or advise the witness not to answer a question. Alternatively, it may create unrecognized conflicts down the road should that witness’s interest become adverse to your client. In some cases, it is better for the witness to acknowledge that he is not represented by counsel even though you have assisted him in preparing for deposition.

§436.1   Representing the Corporate Employee

Problems may occur when corporate counsel produces corporate employees at the deposition who were witnesses to the important acts comprising the case, particularly employees outside the “control group.” See §335, supra. Often, representation of the employees at the deposition is based upon the assumption that no conflict exists between the employees’ interests and those of the employer.

Counsel often attempt to finesse the issue by stating that they represent the employee only for purposes of deposition. Does counsel producing these witnesses really “represent” them in the sense that he or she represents the principals of the corporation? If the attorney commits to full representation, then the attorney-client privilege adheres.

Practice Tip:

Corporate Employees and Attorney-Client­Privilege

When taking the deposition of a corporate employee, try to get his or her counsel’s statement on the record whether the attorney is representing the employee. If counsel is unwilling to commit to this, the attorney-client privilege as to the pre-deposition meeting should not apply.

Employees will usually feel pressured to give testimony favorable to the employer at the time of the deposition. But such loyalties may fade quickly if the employee leaves the company. It is imperative that counsel use the greatest degree of circumspection when preparing such witnesses for the deposition.

Practice Tip:

Corporate Employees Who Turn Against Their Employers

If you are representing the employee, it is important to protect yourself against an employee who may change loyalties and turn against the company. Protect yourself by taking good notes at all meetings with the employee.

§437   Timing

Where possible, consider conducting your preparation over several sessions. Trying to cram all of the preparation into a single session may be counterproductive—the witness will either stop listening or fall victim to information overload and lose much of the benefit of your counsel. Conducting the preparation over two or more sessions gives the witness time to digest the information which you have given to him.

The first session may come just after the deposition has been noticed. You might want to discuss the nature of the deposition process and the basic rules of procedure. You might also want to use that session as an opportunity to go over the facts and to make sure that all of the relevant documents have been identified. By the end of the session, you may have achieved two objectives: your witness may be sufficiently comfortable with the process that he does not fear it, and you will have increased your knowledge of the case.

In a follow-up session, you may want to spend more time talking about substantive issues and also focus upon techniques for answering questions. This may be the occasion to conduct a practice examination, possibly using a videotape. You should also spend time reemphasizing the most important points from the first preparation session.

Just before the deposition, consider meeting with your witness a third time. This is the time to emphasize the key points or to raise any additional thoughts you might have. If necessary, use it as an occasion to build your witness’s confidence. A nervous witness will usually be less effective then one who is self-assured.

§438   Preparing the Problem Witness

During the course of your career, you will no doubt on multiple occasions have a problem witness you must defend in a deposition—a witness that may deviate from the truth, a witness who, notwithstanding all of the preparation described in the preceding sections, persists in violating the fundamental rules of being deposed. What do you do?

Regrettably, there is no easy answer—the only answer being to keep trying every technique to get him under control.

If you anticipate that the witness will not follow the basic rules, use practice examinations, preferably video- or audiotaped. When shown his specific errors in responding to specific questions, most witnesses learn quickly. Whether or not you “harshly” emphasize the rules of deposition depends upon your feel for the response of the witness.

§438.1   Avoiding the Dangers of Assumed Facts

It is amazing how much nonpersonal knowledge becomes admissible evidence. Witnesses, particularly when somewhat intimidated by examining counsel, too often accept the questions of the examiner as statements of fact, or accept their own logic as to what is likely or probable as being in fact what occurred. For example, how often does the witness say, “I assume …,” “It probably …,” “I’m sure that …,” “I believe that ….” The witness should be reminded that he has no obligation to answer all questions—he has an obligation to answer only those questions to which he knows the answer.

Introductory phrases like “I assume that …,” “It probably …,” “I’m sure that …,” and “I believe that …” pose a further danger for the witness: it can undermine what the witness actually knows to be true. Each of these introductory phrases equate to the witness not actually having personal knowledge. When preparing your witness for his or her deposition, make sure that if the witness knows something to be true, the witness does not undermine the testimony with weak introductory phrases such as these.

Another phrase that witnesses frequently use as a crutch is “I would have [done/said …].” Try to get your witness to banish this phrase from his or her deposition vocabulary. If the witness said or did something, the witness should testify: “I did …” or “I said …” Similarly, phrases such as “To be perfectly frank …,” “To be candid …,” and “To tell the truth …,” risk sending the impression that the witness has not been truthful up to that point.

All this reinforces the basic deposition preparation rule that the witness should answer the question truthfully but concisely—to say no more than is necessary to provide a truthful answer.

§438.2   Handling the Untrustworthy Witness

From time to time in a deposition, you may be defending a witness whom you do not trust to tell the truth. The ethics codes of your jurisdiction define your obligations if you know or believe your witness has testified falsely. However, what do you do if you anticipate that your witness may testify falsely?

There are several approaches, the best being dependent upon how you evaluate the witness. For example, you can provide the witness with a copy of the perjury statute, 18 U.S.C. 1621, which will reinforce the benefits of giving truthful testimony. To some, this approach may seem a little extreme and possibly strain an attorney’s relationship with the client. In most situations, the best approach is to explain to the client, as part of your general preparation, that even innocent misstatements can have catastrophic results, that discovered false ­testimony—whether intentional or unintentional—can destroy an otherwise meritorious case, and can have excruciating personal consequences, no matter who the client is. See, e.g., Jones v. Clinton, 36 F. Supp. 2d 1118 (E.D.Ark. 12, 1999) (President of the United States held in contempt for violating discovery order in sexual harassment suit by testifying falsely about past extra-marital relationship at deposition; President ordered to pay court and plaintiff’s cost. Because the President was a member of the Arkansas State Bar, the matter was referred to the Arkansas Supreme Court’s Committee on Professional Conduct for review). See Hecht, “Deposition Perjury by Your Own Witness: How to Prevent It, Deal with It, And Survive It,” 11 No. 5 Inside Litig. 7 (May 1997) for a review of the procedures available to an attorney faced with a client who has given perjured deposition ­testimony.

§439   Preparing for the Video Deposition

If your witness’ deposition is to be videotaped, additional preparation is generally in order. Unlike the standard stenographic record, a videotaped deposition captures the witness’s appearance, demeanor and testimony. Consequently, you may want to experiment with makeup, hair and clothing, in preparation for the deposition. You may also want to conduct a mock video deposition of your witness to not only familiarize your witness with the nature of the proceeding, but to graphically demonstrate what areas need correcting before the actual deposition. Often the witness’s review of his or her own performance is a much better aid in that witness’s preparation than all of your carefully drafted verbal admonitions.

Specific points should be reviewed with the witness about his demeanor and answering, analogous to testimony in the courtroom. With a deposition that is being only stenographically recorded, the visual aspects of the testimony, as contrasted to testimony at trial, need not be considered. However, with a videotape, the visual aspects of testifying become important. Consider the following checklist:

  1. Sit comfortably, but reasonably straight, both feet on the floor, hands on the table in front of you.

  2. Sit still. Everyone has their version of the meaning of a witness squirming, which might simply be occasional movement.

  3. Sit straight. Often, the more tired you become, the poorer your physical posture becomes and poor physical posture usually creates a poor impression. Having your feet flat on the floor helps to maintain good posture. (Make sure that you have a comfortable chair that is not unduly relaxing.)

  4. Look at the examiner when he or she is asking a question. However, if the camera is considered to be the jury, testimony directed to the jury is preferable. Juries are generally more receptive to answers given to them as opposed to a mere dialogue between the questioner and the witness. Depending upon the location of the camera, it may be advisable that the witness look at the camera when responding to the question. Remind the witness that you will insure that the camera angles will not unreasonably distort his or her physical ­appearance.

  5. Speak in your normal voice, but try to invoke reasonable gestures, inflections.

  6. Reading documents. Of course, you must take the time to read any document that is handed to you if you are going to be asked questions about it. However, try not to be unreasonably bent over the document. Instead, hold the document somewhat up. When you are not reading the document, switch your eyes back to the examiner. If the document has any length, ask if you can go off the record and read the document without the camera and lights on. Even if the request is denied, it may be of effect.

  7. Remind the witness to follow the same rules for a stenographically recorded deposition. However, long pauses between the ­question and answer, although generally not discernible in a stenographically recorded deposition, can, in a video deposition, give the appearance that the deponent is somewhat less than forthright in his or her testimony. While the witness should carefully consider each question before answering, the witness nonetheless should be cognizant that long delays can be misinterpreted by the trier of fact.

§440   Hints for Handling the Tricky Examiner and Tricky Questions

Be cognizant of a witness’s understandable anxiety of facing the skillful or tricky examiner in unfamiliar surroundings. While simply relating the truth is the witness’s best weapon, that may not be enough if the opposing attorney extracts unintended and often inaccurate admissions. As part of your preparation with the witness, consider discussing some of the techniques used by examining attorneys. A few of these are:

The Use of Leading Questions

A leading question suggests the desired answer and is often responded to by a yes or no answer. An effective cross-examiner will use leading questions to pin down a witness’s testimony since it forces the witness to “adopt” the examiner’s question into the answer itself. Leading questions can often be used to extract unintended admissions. The use of a leading question is generally an appropriate form of examination and you should inform the witness to answer the question as “yes” or “no.” However, if the question is “loaded,” inform your witness that you will object. Unless there is a sufficient basis for instructing the witness not to answer the question, he or she will have to respond in some manner.

While preparing the witness on how to handle leading questions, inform him or her that merely because the question is phrased “isn’t it true” or “that’s correct” does not mean that it is true or correct. The witness must carefully listen to the question, as well as to any of your objections, to analyze the question objectively. If the question contains a statement that is not completely true, the witness can safely deny it. The witness should also demand an explanation of any terminology contained within the question itself which the witness does not understand. If you have a very competent and intelligent witness, you can utilize “narrative responses” beyond the simple yes or no format. This will not only serve to disrupt the pace of the examination, but may also dissuade the examiner from utilizing that ­approach.

In the event that the examiner attempts to force a yes or no answer, the witness should respond either that he or she does not feel capable of doing so, or provide a narrative response which has the same effect.

Summarizing Testimony

Examining attorneys often want to confirm their understanding of previous testimony or documents by summarizing and asking the deponent to confirm the accuracy of the summary. Sometimes this technique is appropriate and fair. Other times it is not because the examiner has subtly changed the witness’s earlier testimony. If the witness believes that the summary accurately reflects his earlier testimony, he should affirm it. (Often he would be better off responding that the summary appears to be generally accurate, but that his earlier testimony is more accurate.) If, however, he feels the summary is inaccurate in any way he should reject it without saying more. The examiner can choose whether to ask why or to correct the summary.

Questions Calling for Approximations

Sometimes the examiner will ask whether a statement is “substantially true.” In most cases, you should object and your witness should be advised to carefully consider whether he is able to respond. Note that the witness is not required to speculate; he is only required to recount his own knowledge. If the witness feels compelled to agree, he should consider restating the summary in terms of his own.

Using Compound Questions

The examiner may ask a compound question, sometimes by mistake and sometimes by design. Advise your witness that you will object and that he need not feel compelled to answer such improper questions. If the examiner attempts to force the witness to answer the question, the witness is certainly entitled to ask the examiner which question the examiner wishes to be answered and then answer only that portion of the compound question.

Questions Containing an Assumption of Fact

The examiner may ask the witness to assume facts which cannot be verified by the witness being deposed. Such questions are generally improper and unnecessary in the context of a deposition. Object for the record and advise your witness that he does not have to endorse any fact beyond the scope of his knowledge.

Questions Using the Words Never and Always

A witness should always be careful about questions involving the terms never or always, or any other absolutes of that kind. Witnesses can easily be tricked by questions involving absolutes. Although there may be exceptions, few of us could say with total confidence that we have never done something or that we have always done something. If the examiner follows up on such an absolute statement, the odds are good that he is aware of at least one example where the witness has done something. The never question is merely a way to set the witness up for impeachment.

For example:

Q.   Have you ever failed to wear your seat belt when driving your car?

A.   Never.

Q.   Are you sure about that?

A.   Absolutely.

If the point is important, you should be fearful that your witness is being set up. The examiner may have another credible witness who will swear that there were occasions when your witness did not wear his seat belt. A properly counseled witness would have couched his response in the conditional: “I can’t recall any such ­occasions.”

A conditional response to a question calling for an absolute can be more truthful than an absolute response. Unless the witness is absolutely sure of his answer, he should be advised to treat absolute questions with extreme caution. Few of us are 100 percent sure about anything. A witness can be impeached for mistakenly saying never but he cannot be impeached for saying that he does not recall ever doing something.

The witness should also be cautioned about questions such as “is that all you know about … [the subject].” Unless the prior testimony has truly been exhaustive, the witness should be advised to qualify his answer, either by adding additional information if he recalls it or by saying that this is all he can recall at the moment. Depositions can go on for hours and your witness can easily forget what has been covered during the interim. Moreover, a review of documents at a later time may elicit additional knowledge.

Questions Which Call for Speculation

Another type of tricky or self-serving question is one which calls for speculation. Examiners will often try to elicit helpful testimony by asking a witness “Isn’t it possible that ….” This type of question is often misleading and it is arguably improper. Almost anything is possible in this world but possibilities are rarely relevant as factual testimony. Unless your witness is being deposed as an expert, he does not have to respond to this self-serving type of question. Advise him that you will object. Often the correct answer is, “I don’t know.”

Another version of this technique is to ask the witness “Do you always …” or “If it were important to you, would you ….” These questions are designed to set up future impeachment or to lead the fact finder to draw a conclusion based upon circumstantial evidence. If the witness is sure that his conduct never varies, which would be unusual, he could answer the question yes. If not, the proper response is a qualified answer or to reply that he does not know.

Questions Which Call for Precise Recall

The witness should be cautioned about questions which ask for recall of precise words used or exact recall of details. Rarely will a witness be able to recall precise details and he should be advised that no one expects or requires it. The witness should respond by giving his best recollection and should feel compelled to do no more than that.

The Badgering Examiner

An examiner who is hostile or otherwise badgers a witness may succeed in eliciting helpful, albeit inaccurate, testimony. You should reassure your witness that you will not allow such tactics to go on in a deposition and that you will stop it if it occurs. You must also caution your witness not to get angry at the questions posed or to do anything else which might cause your witness to lose his ­focus.

The Rule which you may invoke if an examiner is acting unreasonably in badgering a witness is Rule 30(d). The Rule permits any party or the deponent to demand that the deposition be suspended for the time necessary to file a Rule 30(d) motion to seek the court’s order terminating the deposition or limiting the scope or manner in which the deposition is being taken.

Such a motion requires a showing that the examiner was acting in bad faith or in some other unreasonable or oppressive manner. The basis for such a motion will typically be the transcript of the deposition. Therefore, remember that if the witness is being badgered, harassed, or yelled at, you should make a record of the examiner’s voice tone, gestures, threats, laughter, etc. You should also invoke the Rule and state that it appears the deposition is being taken in an improper way or for an improper purpose and that you are suspending the deposition to make the appropriate motion.

The Rule does not require that the harassed witness be your client. Any time any witness is being improperly examined, the Rule permits that witness or any objecting party to suspend the deposition.

Withholding Documents

Often, an examiner will ask a witness questions concerning a transaction, meeting, or letter when the answer to the question can be found in documents which have previously been produced and reviewed by the examiner. They may or may not be documents with which the witness is familiar. These questions sometimes amount to nothing more than a “memory test.” If neither you nor your witness is familiar with the documents, the examiner can trick the witness into misstatements of fact by withholding the documents at the time he asks the questions. This is another reason for you to be familiar with all of the documents before the deposition occurs so that you can ask the witness whether he wishes to review the letter, meeting minutes, contract. etc., before answering.

A variation on this type of tricky examination is only allowing the witness to partially review a document before answering the question or only providing part of a multi-page document for the witness to review. Sometimes the witness will be shown drafts of documents or minutes, or documents where handwritten notations or changes are omitted. Again, you must know the documents in order to make the proper objection.

First, you are permitted to instruct the witness that documents do exist which may aid in his recollection and that he has the right to review any document which will help with his recollection prior to answering. Second, insist that the witness be allowed access to the document and ample time to review it prior to answering. Third, you should make certain that any documents which the witness does review are described on the record by number, date, or other description, along with, obviously, any omissions or deletions. If the examiner persists in requiring an answer without revealing the documents or permitting sufficient opportunity for review, you should so note on the record. Thereafter, the witness is likely to give an answer which will be noncommittal and unlikely to be given undue weight at trial.

Inaccurate Instructions

Sometimes opposing counsel will give instructions to the witness which you believe are incorrect or which are contrary to instructions that you gave at the time you prepared the witness for deposition. At the time of the deposition, the opposing attorney might state: “you are required to sign the deposition,” or “you can change your answers without penalty after you read the deposition,” or “if you answer a question, we can all assume that you understood it.” Such “instructions” or statements must be corrected on the record by either disputing the accuracy of the statement or reinstructing the witness in the proper fashion.

It may be necessary for you to adjourn the deposition briefly for purposes of holding a short conference with your witness or client to clear up any confusion he may have as to which instructions to follow. You do not want your client or witness to give more credence to the perhaps more official-sounding instructions given during the actual deposition than to your instructions given earlier in less formal surroundings.

Improper Use Of Legal Work Product

Sometimes an examiner will display pleadings or statements contained in non-verified discovery responses and ask the witness about them. “Why did you plead waiver as an affirmative defense?” The problems with such questions are obvious. They invade work product and ask the witness to bind himself to something he never wrote (and maybe never saw). In addition, the witness (unless he is an attorney) is unfamiliar with the terminology, and correct definitions would have to be a part of proper foundation for the question. The examiner can ask about the facts surrounding the alleged waiver, but you should not permit him to refer to a legal document or pleading and then ask an overly broad question containing legal conclusions or to probe possible work product or privileged information.

§441   Examples of Tricky or Objectionable Questions

Of course, there is no limit to the types and kinds of objectionable questions. However, the following are examples:

Q.   What did Joe think about Tom’s proposal?

Objection: calls for speculation. The witness cannot know what went on in Joe’s mind. (Question can be asked: What did Joe say or indicate about Tom’s proposal?)

Q.   After Tom called Bill, what did he say to you?

Objection: assumes fact not in evidence, (i.e., that Tom called Bill).

Q.   Would it be fair to summarize your testimony as ­saying …

Objection: Question contains inaccurate summary. Or

Objection: Witness cannot be required to opine on the degree of accuracy of the examiner’s summary.

Note: Depending on the circumstances, the question may be proper .

Q.   Did Mr. Klington drink the bourbon and strike Mr. Bingingham?

Objection: compound question.

Objection: question contains inaccurate summary. Or

Objection: witness cannot be required to opine on the degree of accuracy of examiner’s summary.

Q.   Have you told me everything about X, Y, Z?

Objection: the question is too broad (but properly should be answered, yes, as far as I recall and I believe I have answered them to the best of the knowledge that I can recall).

§450   Preparing Specific Witnesses for their Depositions

Your preparation of a witness will vary according to the person: Is he intelligent? Is he verbal? What knowledge does he have? Is he easily confused? Has he been deposed before? It will also vary according to the type of case and the type of examiner you face. The following sections will cover your preparation of a particular witness.

§451   Preparing a Party to Be Deposed

Preparing your client to be deposed is both the easiest and the most difficult. Your client has the greatest interest in the litigation and you should be able to count on his undivided attention. However, your client is also emotional about the case. He will be more likely to get upset during his deposition and may be quicker to forget the admonitions you gave him during your preparation. He may want to tell his story or show opposing counsel why he should win, despite the fact that it may not be strategic to do so. Keeping a client witness under control is often difficult.

There are several points to emphasize to such a client:

  • Your story should be told under friendly examination, i.e. by you, so that it cannot be misconstrued and misshaped.

  • Persuading opposing counsel serves little purpose except for settlement. No judge or jury will be at the deposition, and probably will never read or hear the transcript. If settlement is the objective, effective presentation of facts is rarely accomplished through examination by opposing counsel.

  • Volunteering might be helpful, but make a conscious decision as to what to volunteer.

§452   Preparing a Friendly Nonparty to Be Deposed

In most instances, the attorney-client privilege does not apply to your communications with a person other than your client. (Certain employees and former employees of a client may fall within the scope of the attorney-client privilege.) Hence, in preparing a nonparty to be deposed, assume that all of your communications will be discoverable or that the person may voluntarily reveal to the opposing attorney your communications.

Even though discoverable, your procedure in preparing a nonparty witness should essentially be the same as it is with a party deponent. Even in preparing a client, you should not say or do anything which would be unethical or for which you would be embarrassed if it came to light. The only exception is that you may not reveal strategy decisions or other matters which you would rather be kept from opposing counsel.

§453   Preparing a Corporate Officer to Be Deposed

Preparing a corporate officer for deposition may be a difficult task, both because of conflicting demands upon his time and because he may have limited first-hand knowledge. One problem is that he may feel that he is supposed to know everything that goes on in the company. This can play into the hands of a savvy examiner who will try to coax the officer witness into giving testimony which may conflict with other witnesses who have first-hand knowledge.

During the course of your preparation, emphasize the importance of sticking to testimony based upon personal knowledge, unless asked for information received from others. You must also emphasize that a deposition is not a test or a measure of management performance. Rather, it is merely an opportunity to determine what each witness knows based on first-hand knowledge, or, in some instances, what the witness has been told by others. In giving his answer, the corporate officer must always be careful to distinguish between that which he has perceived or knows of his own knowledge and that which has been reported to him.

§454   Preparing a Deponent Designated Under Rule 30(b)(6) to Be Deposed

If your client is a nonindividual (e.g., a corporation), and you are served with a Rule 30(b)(6) notice of deposition, both the client and counsel face several strategic stages in the preparation for the deposition. Since the burden is on the corporation to produce a witness capable of responding to questions on behalf of the organization, there first must be a clear understanding as to what areas of examination the opposing party seeks. If you believe that there is some ambiguity in a requested area of examination or that an area is ripe with the potential for abuse, have you attempted to meet and confer with opposing counsel to resolve potential areas of dispute? Remember that if you or your client fail to produce a knowledgeable witness, your client may be sanctioned for a “nonappearance” or be required immediately to produce a knowledgeable witness. Bank of New York v. Meridien Biao Bank Tanzania, 171 F.R.D. 135, 151 (S.D.N.Y. 1997).

Assuming that the areas for examination are reasonably clear, the selection of an appropriate witness should be of paramount importance. Neither the Rules nor the case law require a corporate party to designate the most knowledgeable witness. However, you and your client are obligated to designate and produce one or more witnesses capable of giving responses binding on the organization to questions regarding the subjects listed in the Rule 30(b)(6) deposition notice. The selection of a witness will depend upon a number of factors including:

  • The scope of information sought by the various categories. Do the topics for examination seek specific information from the corporate entity concerning issues in dispute, like scientific tests and other analytical data or testimony pertaining to the corporation’s alleged acts or omissions? Does the examination seek testimony that is of a general nature, such as corporate practices, policies or “positions”? It is difficult to conceive of one witness being knowledgeable on both types of topics. More importantly, is it even desirable to attempt to utilize a single witness to bind the corporate entity?

  • The nature and extent of prior discovery from the corporate entity. You should analyze what information the corporation has already responded to through requests for production of documents, contention interrogatories, and mandatory disclosures. Have corporate officers or managing agents already been deposed and, if so, on what areas?

  • The availability of information to respond to the designated areas. Does the deposition seek information about matters which the corporate entity currently has knowledgeable employees or documents?

  • The ease in which you can prepare a candidate(s). Will the prospective designee make a good witness on behalf of the corporation regardless of his or her overall knowledge or qualifications? If you will have trouble preparing the witness or you determine that the witness will be a poor communicator, a different designee should be selected.

Even though a witness may be qualified and knowledgeable, there may be practical reasons why he or she should not be designated to be the corporate spokesman. For example, in a sexual harassment case, you will probably not want the alleged harasser to be the corporate spokesman on the entity’s practices and policies to combat this conduct. Nor will you want to sacrifice the corporate president to testify about issues raised in litigation.

After the designation of the corporation’s witness or witnesses has been made, you will still have the duty to properly prepare the individual to testify. The nature of the designee’s preparation frequently becomes the focus of inquiry when the designee ultimately is proven to be less than knowledgeable. U.S. v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). Accordingly, the designee will not only have to give testimony concerning his or her own personal involvement or knowledge, but also to all matters that the corporation has readily available to it.

Since a Rule 30(b)(6) witness is binding upon the entity, proper presentation and preparation cannot be overly emphasized.

Practice Tip:

Can You Designate a Witness Who Is Not Affiliated With the Organization?

What if there are no good candidates from within the organization to designate to answer questions that will be binding on the organization? Perhaps all the witnesses with personal knowledge have left the organization or perhaps the witnesses with some personal knowledge are either inarticulate or, worse, like to talk way too much and appear largely unpreparable?  There is no prohibition against designating a witness who is not, or is no longer, affiliated with the organization. Thus, if you think that a former employee with particular knowledge of the noticed topics would make a good witness, by all means, you can ask that individual if he or she would be agreeable to appearing on behalf of the organization (of course, you may first want to confirm that the former employee left on good terms). Even if the individual outside the organization has no direct knowledge of the noticed topics, if you think the individual would make a good spokesperson for the organization, you can designate the person. But there are a couple of caveats. First, regardless of who the individual is, the individual’s answers will be binding on the organization, so make sure to properly prepare the witness. Second, designating an unaffiliated person to testify on behalf of the organization raises privilege issues, namely would your communications with the individual be privileged? The authors are not aware of any case law on point, but the individual’s acceptance of the role of Rule 30(b)(6) designee probably would imbue in the individual status as the client organization for purposes of cloaking witness preparation in the protections of the attorney-client privilege.

§454.1   Attorney-Client Privilege and the Rule 30(b)(6) Witness

As noted, there is no obligation under Rule 30(b)(6) for the noticed organization to designate the one or more individuals with the most knowledge on the identified topics, indeed, the organization is permitted to put forward individuals with no personal knowledge of the noticed Rule 30(b)(6) topics, as long as the witnesses are capable of giving the organization’s positions on the topics. For many reasons, the organization may have to put forward witnesses as its designees who lack complete or perhaps even any personal knowledge of the noticed deposition topics. For example, as discussed, with the passage of time between the events in question and the deposition, witnesses with personal knowledge of the events in question may have left the domain of the organization. Or, perhaps the organization makes the judgment that those witnesses who do have personal knowledge would not do well facing hostile questioning.

Thus, the organization may be faced with the task of educating one or more witnesses who lack full personal knowledge of the topics listed in the Rule 30(b)(6) deposition notice. In such a circumstance, it is typically the organization’s lawyer who has the best command of the facts at issue, having reviewed pertinent documents and talked to a variety of individuals, each of whom may possess partial knowledge of the topics in the notice. During deposition preparation sessions, the lawyer essentially teaches the facts to the selected witnesses so that they will be prepared to give the organization’s positions on the noticed topics.

This raises an interesting dilemma during the deposition when inevitably the examining attorney asks the Rule 30(b)(6) designated witness to state the basis for a particular answer to a question. If the witness has no personal knowledge, but is merely (and permissibly under the Rule) stating the position of the organization as explained by the organization’s counsel, he or she may be able to reply with no more than, “I was told that by counsel.” Next question will surely be, “What did counsel tell you?” Should you, as the defending attorney, instruct your witness not to answer the question on the ground of attorney-client privilege? If you do so, will it undermine your ability later at trial to present your case on the issue addressed by the question?

The principles of the attorney-client privilege do not change merely because the issue arises in the context of a Rule 30(b)(6) deposition. There is no waiver from the context alone. See, e.g., In re Linerboard Antitrust Litigation, 237 F.R.D. 373 (E.D. Pa. 2006) (Rule 30(b)(6) witness not required to testify about information known to organization’s counsel that would be protected from disclosure by the work product doctrine). Any legal advice of counsel would be protected, even if the witness is there to testify about the underlying facts as presented to the witness by counsel. In other words, the witness must answer questions that call for “purely factual information within the corporate knowledge,” even if the organization’s designee learned the information from counsel, but should not answer questions that would “disclose legal advice of counsel which is privileged.” Sony Electronics, Inc. v. Soundview Technologies, Inc., 217 F.R.D. 104, 109 (D. Conn. 2002). As that court stated, “Questions posed which elicit purely factual information that is now in the possession of corporate officials and do not ask for the substance of communications between counsel and client are to be answered as the answers to these questions will not be disclosing legal advice of counsel.” Id. at 110. See also Sprint Communication Co. v. TheGlobe.Com, Inc., 236 F.R.D. 524, 529 (D. Kan. 2006) (“[A Rule 30(b)(6) witness] cannot refuse to disclose facts which their attorneys conveyed to them and which the attorneys obtained from independent sources.”) The distinction between “purely factual information” and “legal advice” may not be entirely clear when it comes to what the attorney tells the Rule 30(b)(6) designee during deposition preparation about the attorney’s investigation. On the one hand, the attorney’s choice of which documents to review, what to highlight from those documents, which witnesses to interview, and what questions to ask those witnesses is surely infused with the mental processes of that attorney. On the other hand, one can easily imagine a court compelling the witness to describe what the attorney told the witness about the attorney’s own investigation. The authors are not aware of case law guidance on this issue. Perhaps a creative attorney would argue that such an instruction not to answer would be improper under the principles of Federal Rule of Evidence 612, that the deposition preparation process was used to “refresh” the organization’s witness’s memory, and that not permitting inquiry into the area would subvert the discovery process.

Either way, whether you as the attorney at the deposition instruct your Rule 30(b)(6) designee witness not to answer a question about deposition preparation, or you let the witness answer and describe your efforts to investigate the topics identified in deposition notice, the response will not be particularly helpful to you for trial. There is a safer approach, but it requires more planning and preparation. The organization’s counsel, instead of serving as a conduit of information to the designee who lacks personal knowledge, instead should play the role of shepherd. Rather than telling the designated witnesses what documents say, the attorney should show the relevant passages to them; rather than telling the designated witnesses what others within the organization with personal knowledge know, the attorney should arrange for the designees to interview those with knowledge.

Now play out how the deposition would proceed. After the Rule 30(b)(6) designated witness states the organization’s position on the noticed topics, the witness would respond to questions about the basis for the positions by identifying documents and other individuals with knowledge. This of course is an invitation for the deposing party to then notice the depositions of the non-present witnesses with the actual personal knowledge. However, this is how discovery works, and furthermore, importantly to the organization, those witnesses would be giving their testimony as individuals, rather than as the organization’s designees giving testimony binding on the organization.

Note that some organizations will designate the attorney him or herself as its Rule 30(b)(6) designee. There is nothing impermissible about this approach. See, e.g., Inverness Medical Switzerland GMBH v. Acon Labs., Inc., No. 03-11323, 02-12303-PBS, 2005 WL 1491233 (D. Mass. June 23, 2005). In that case, one of the parties’ outside lawyers gave Rule 30(b)(6) testimony. In its discussion of conflict of interest issues, the court noted:

In his affidavit, [the attorney] stated that he ‘had no prior personal knowledge’ of the issues about which he was asked to testify as a 30(b)(6) deponent, and that he ‘therefore prepared to give testimony by gathering historical information.’ He also states that ‘any information I had about [the client’s] allegations regarding the disclosure of a decision of the European Patent office revoking a European counterpart of [a different] patent was not from my own personal knowledge, but was information I had gathered as part of my investigation.’

Id. at *3. Of course, when the organization designates its own counsel as its Rule 30(b)(6) designee, the need to parse between underlying facts and attorney-client privileged communications (and the work product doctrine, which would protect the witness’s mental impressions) becomes all the more important and challenging.

§455   Preparing to Defend the Deposition of an Uncooperative Witness

Many of the witnesses being deposed may be hostile or at least uncooperative with you. You may not have the opportunity to discuss the case with the witness, or to prepare him to be deposed. Nevertheless, your responsibilities in defending the deposition remain the same. Like at trial, you must be prepared to examine the witness, minimize adverse testimony, and take advantage of helpful testimony.

In such a situation, your preparation must be the same as with a friendly witness, except that you may not have the opportunity to discuss the deposition with the witness prior to his deposition. Indeed, if you do not have the opportunity to talk to the witness, special emphasis needs to be placed on discussing the witness and his possible knowledge with your client and cooperative witnesses. Try to ascertain as much information about the deponent as possible, so as to be prepared for the questioning at the deposition and avoid surprises. It is much easier to make appropriate objections to questions if you know in advance what knowledge the witness has.

§456   Preparing an Expert Witness to Be Deposed

Your expert witness may not only be an expert in his professional field but he may be an expert at testifying, having testified tens or even hundreds of times. If so, if his technique is not perfect, there probably is little you can do to improve it. However, even with these experts, you should refresh them as to the basic elements of being deposed.

On the other hand, your expert may be distinguished in his field but totally inexperienced about the deposition process or his role in the civil trial proceedings. Your preparation of such an expert should begin with introducing him to the deposition process, §451, supra, and to techniques to answering questions, §§452-453, supra.

Next, explain to your expert that he probably will be examined concerning various background areas, such as:

  • Education;

  • Prior experience;

  • Prior employment as expert witnesses, and on which side;

  • Articles, etc., he has written;

  • Other depositions given (and availability of transcripts);

  • Treatises he considers authoritative;

  • Persons he considers authoritative;

  • All information and documents he has received concerning the case;

  • All notes and reports he has made or rendered;

  • Knowledge of opposing party’s expert;

Next, discuss that the examiner will cover the conclusions and opinions reached by the expert for this case, and the grounds for each. Lastly, prepare your expert for hypothetical questions, based upon changes in the underlying facts. Also explain that the examiner will attempt to:

  • Commit to specific testimony so that testimony at trial must be consistent. This eliminates surprises and allows the opposing party to define what they want to attack;

  • Ascertain precisely what you know and do not know—perhaps to be able to later show how additional facts would change your opinions, and to prepare his or her own witness to attack your conclusions and reasoning.

§460Suggested Source Materials

Flynn, Guide for Deponent Preparation: Rules of the Game, 14 Am. J. Trial Advoc. 97 (1990)

Proller, “Half a Dozen Deposition Tips,” 27, No. 2 Trial, Feb. 1991, at 57

Bartimus and Dymer, “Deposition Preparation: Facing the Medical Negligence, Defendant and Experts,” 15 Trial Diplomacy Journal 113 (1992)

Warshafsky, “Successful Cross-Examination of Technical Experts,” 15 Trial Diplomacy Journal 89 (1992)

Gass, “Preparing Your Witness for a Videotape Deposition,” 34, No. 9 For the Defense 29 (1992)

Smith & Kavanagh, “Preparing a Witness to Testify in a Commercial Case,” 18, No. 4 Litigation 36 (Summer, 1992)

Davis, “ABC’s of Preparing Clients for Deposition and Trial,” 28, No. 2 Trial 42 (Feb., 1992)

Sumpter, “Preparing the Expert for Deposition or Trial,” Practical Lawyer 298 (Sept., 1992)

Schulman, “Coaching Witness Credibility,” The Practical Litigator, January 1993

Welch, “Just Say “No” to Deposition Coaching,” 10-AUG S.C. Law. 20 (July/August 1998)

Daniel P. Dain is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston,Massachusetts. Mr. Dain is a trial lawyer focusing his practice on representing real estate developers and property owners in litigation and administrative matters. He also maintains a commercial litigation practice and has represented clients in insurance coverage disputes. Mr. Dain was formerly Senior Counsel for Real Estate and Land Use Litigation at Goodwin Procter, LLP. Mr. Dain is also a former Special Assistant District Attorney in Middlesex County, Massachusetts. He is the author of How to Prepare for, Take and Use a Deposition, from which this article is excerpted.