Forgetful witnesses, spotting liars, difficult opposing counsel, and more.

by T. Evan Schaeffer

Deposition Checklists & Strategies

Excerpted from Deposition Checklists and Strategies

Sometimes you will be faced with a situation in which your opposing counsel asks whether “the usual stipulations” will apply to your deposition. In other cases, the court reporter will ask at the beginning of a deposition, “Can I note that this deposition is being taken according to the usual stipulations?”

Just what are “the usual stipulations”? The answer is that it depends. The usual stipulations vary from jurisdiction to jurisdiction, and might even vary within jurisdictions according to the local practice.

The usual stipulations might include agreements based on the jurisdiction’s procedural rules—for example, that all objections except those as to form are waived. The usual stipulations might also include agreements based on years of local practice—for example, that depositions, despite a rule to the contrary, need not ever be filed with the court.

Since the phrase “the usual stipulations” is always ambiguous, you should never agree that the usual stipulations will apply to your deposition.

With this said, it is okay to make agreements about the rules that will govern your deposition. Just make sure you understand exactly what you are agreeing to. If the opposing lawyer asks for a stipulation, make him or her spell out exactly what he or she is proposing on the record. Only then should you make your decision about whether or not you can agree to it.

§1:92   The Role of the Court Reporter

The court reporter is responsible for “swearing the witness”—that is, administering an oath to the witness to tell the truth. Once the deposition begins, the court reporter transcribes the proceedings and, if asked, attaches exhibit stickers to your exhibits.

You can make life easier for the court reporter by following these tips:

  • Do not allow witnesses to answer before you have finished your question. It is difficult for the court reporter to transcribe the proceedings if the participants are talking over one another.

  • If you read from an exhibit, do not read so fast that the court reporter has difficulty taking down what you say.

  • During breaks, provide the court reporter with the spellings of any difficult names.

  • If you do not want something on the record, remember to say, “Off the record.” Don’t begin talking until the court reporter stops typing. This way, if you get into a dispute with the opposing lawyer about what is on or off the record, you do not have to worry about the court reporter taking down something you did not want recorded.

[§§1:93-1:99 Reserved]

B.   Questioning During Deposition

§1:100   Preliminary Questions

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

Q:   Have you ever had your deposition taken before?

Q:   You understand you are under oath?

Q:   And that means sworn to tell the truth?

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

Q:   Are you prepared to answer my questions today?

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

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

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

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

You will find standard preliminary questions like these at the beginning of this book’s sample outlines. One reason for using the standard preliminary questions is to put the deponent at ease right from the start. But more importantly, they will help you later if you need to impeach the witness with his or her prior testimony.

For more on this point, see §1:101.

§1:101   Practice Tip: Always Ask the Standard Preliminary Questions

While the standard preliminary questions do not have to come at the very beginning of a deposition, you should not skip them altogether. The importance of the preliminary questions becomes evident if you view them from the point of view of the lawyer trying to impeach the witness at a later date.

Some of the preliminary questions cut off avenues that might otherwise be available for backpedaling when the witness tries to change his or her answer, e.g., “I didn’t understand your question” or “I didn’t know I was under oath.”

You can also use the answers to the preliminary questions when you are laying a foundation for impeachment, e.g., “And at your deposition, you knew you were under oath, didn’t you?” . . . “And sworn to tell the truth?” . . . “And you told me you were prepared to give me your full attention?” . . . “And we agreed that if you didn’t understand one of my questions, you would let me know?”

The form and style of impeachment varies from lawyer to lawyer, but the general idea is the same. Do not skip the preliminary questions.

§1:102   Practice Tip: Mixing It Up

The preliminary questions do not necessarily have to come right at the beginning of a deposition. Since both the lawyer and the witness will expect you to begin with easy topics, you can often gain a tactical advantage by heading straight into an important issue.

Try mixing up your deposition outline by beginning with “Can you tell us your name please for the record,” then jump to a topic that would normally happen much later in the deposition. Later, you can circle back to complete the preliminary questions at your leisure.

§1:103   Basic Questioning Technique

Here are some things to keep in mind about phrasing questions at depositions:

  • If you are trying to get information, ask open-ended questions.

  • If you are trying to pin a witness down, ask leading questions.

  • Whether open-ended or leading, keep your questions short.

  • Try to make each question self-contained, so that you can understand it without reference to other questions; this means don’t use pronouns such as “he,” “they,” or “it.”

  • Speak in complete sentences.

If you mess up after you have started a question, simply say “strike that” and start over. Another method of starting over is to say to the witness, “I’m going to start over. Okay?” This way, after the witness answers “yes,” your corrected question will start on a new line of the deposition transcript.

The sample depositions in these books contains thousands of examples of appropriately-phrased deposition questions. You can also learn about basic questioning technique simply by reviewing deposition transcripts, both your own and those taken by other lawyers.

For other tips about questioning technique, see V.B. Situations You Might Encounter (§§1:140 et seq.).

§1:103.1   Practice Tip: Watch Out for Negatives in Leading Questions

Leading questions should be short and to the point. They should also be phrased as a positive, not a negative. Beware the following common error, which will result in frequent follow-up questions:

Q:   It was 2:10 p.m., is that not correct?

A:   Yes

Q:   That was a true statement?

A:   Yes.

It’s that pesky negative that causes the problem. A better approach would be:

Q:   It was 2:10 p.m., correct? —or—

Q:   It was 2:10 p.m.?

The last example is often the best alternative. It’s simple, direct, and unambiguous.

§1:104   Questions by Opposing Counsel

After you have finished questioning the witness, your opposing counsel will have an opportunity to ask questions. If any of these questions are objectionable, it is up to you to object at the appropriate time—that is, after the question but before the answer. See generally VI. Objections at Depositions (§§1:160 et seq.).

When your opposing counsel is finished with his or her initial round of questions, you can follow-up with questions of your own. The opportunity for questioning passes back and forth in this matter until both sides say “no further questions.”

In some jurisdictions, the scope of additional questions will be limited to the matters that came up in the preceding round of questions.

[§§1:105-1:109 Reserved]

C.   Ending Depositions

§1:110   How to End a Deposition

When do you know when to end a deposition? You end a deposition when you have asked all the questions you want to ask.

Do not let your opposing lawyer pressure you into ending the deposition before you’re ready to end it. When you think you are finished, ask to take a break. Look over your deposition outline to make sure you have not skipped anything you want to ask. Look over your notes to make sure you have properly followed up on all the witness’s answers.

When you are conducting this review, be methodical. Take your time. It is probably the only opportunity you will have to question the witness, so do not end the deposition until you’re ready to end it.

When you know you are ready to complete the deposition, say, “No further questions.” If the other lawyer does not have any questions either, the deposition is complete. For more information, see §1:104 Questions by Opposing Counsel.

When the deposition is finished, the witness will have to be advised about the procedures for either reading and signing the deposition or “waiving signature.” If the witness is represented, his or her own lawyer will advise about signature. If this task falls to you, say something like this:

The questions and answers today will be typed up by the court reporter into a deposition transcript. You have the right to read the deposition and review the answers. In the alternative, you can also rely on the accuracy of the court reporter to have taken down everything you said, in which case you can waive the requirement of signature.

§1:111   Practice Tip: Can You “Wing It” at a Deposition?

Can you wing it at a deposition? Undoubtedly, you can. When depositions don’t give you butterflies anymore, it can give you some pleasure to know that you can step into a conference room and conduct a complete deposition barely giving a thought to preparation.

What are the dangers of winging it? While style over substance can get lots of lawyers through depositions, “winging it” is never a good idea. If you are merely going through the motions, which is the whole point of winging it, you are not adding value to the case. It’s not a good way to lay the foundation for trial or settlement.

Before winging your next deposition, here are some questions to ask yourself:

  • What are the goals of the deposition? Are you merely gathering information or can you also get helpful admissions from the witness? How do you plan to achieve your goals?

  • Do you plan to exhaust the witness’ memory on certain issues? Which ones? Why these issues and not others? When you are finished, will the witness really be pinned down, or have you left some doors open for him to wiggle through later?

  • Have you reviewed the pleadings? If not, why not? Have you looked at the discovery responses and documents? Which ones do you plan to use at the deposition, and why?

  • How is the witness going to fit into your plan for trial? Have you even thought about trial? How will the witness support or detract from your legal claims or defenses?

  • How can use the deposition in motions before trial? Have you thought about the ways you’ll use the deposition in other depositions? Have you thought about the ways you’ll use the deposition at trial?

No matter how memorable your deposition style, there’s simply no substitute for thoughtful preparation.

[§§1:112-1:119 Reserved]

D.   After the Deposition

§1:120   Following Up on the Transcript

Following the deposition, the court reporter prepares the transcript. In most cases, the original is mailed to the lawyer who noticed the deposition. The other lawyers get copies.

§1:121   Practice Tip: Critiquing Your Own Performance

It is always a useful exercise to ask yourself after each deposition how you could have improved your performance. When depositions become not only a means of preparing your case for trial, but also an opportunity for learning, you will hone your deposition skills much more rapidly than the average lawyer.

Some lawyers keep a running tally of their own self-criticisms, which they review when preparing for the next deposition. It’s a great way to stay focused on your goal of getting beyond the basics.

Another useful exercise is to critique the performance of your opposing lawyer. You will find yourself picking up tricks and techniques that you can easily add to your own deposition repertoire.

§1:122   Practice Tip: Motions in Limine

A motion in limine is a motion asking the trial court for a pretrial ruling that certain evidence is not admissible. The same motion can also be used to obtain a pretrial ruling that certain evidence can be used.

Typically, a motion in limine is presented just before the trial begins. It might consist of a long list of facts that you think the defense should not be allowed to bring into evidence—facts or argument about third-party insurance, for example, or facts about a preexisting injury to another part of the body that you think is irrelevant to issues in the trial.

You can make your motions in limine better—and save time preparing them—by keeping a list of points to include at the conclusion of every deposition. This idea works well because it is during depositions that you get a preview of the facts that the defendant wants to present at trial. Keeping a running tally of the points for your motion in limine as discovery proceeds is far more efficient than trying to review the entire file in the week before trial.

§1:123   Practice Tip: The Witness Can’t Outsmart You at a Deposition

Can a witness “outsmart” the lawyer who is asking questions at a deposition?

It can certainly happen during a trial, especially during cross-examination. But a deposition is different than cross-examination.

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

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

[§§1:124-1:129 Reserved]

V.   Other Deposition Techniques

A.   Handling Documents

§1:130   Handling Documents at a Deposition

When you are ready to use a document, hand it to the court reporter to be marked with a deposition exhibit. Remember not to say anything when the court reporter is placing the exhibit sticker on the document: with only one set of hands, the court reporter will not be able to record what you are saying.

Next hand a copy of the exhibit (or the exhibit itself if you don’t have a copy) to the opposing lawyer. This is courtesy that will allow the opposing lawyer to follow along without having to look over the witness’s shoulder. The exhibit should then be handed to the witness. Ask the witness to identify it. Any of the following questions will serve this purpose:

Q:   I’m handing you what’s been marked Exhibit X. Can you identify that document for the record?

Q:   I’m handing you what’s been marked Exhibit X. Can you tell me what it is?

Q:   I’m handing you what’s been marked Exhibit X. Is that a letter from John Smith to Sally Jones dated March 13, 2006?

After the witness answers, you can ask further questions about the document. Remember to refer to it by its exhibit number so that the record is clear.

§1:131   Practice Tip: “The Document Speaks for Itself”

If you ask a witness about a document, your opposing counsel may say, “Objection, the documents speaks for itself.” In most jurisdictions, this is an objection without substance, so you can carry on by asking the witness to answer over the objection.

If you want to have a witness comment on a passage in a document, one way to do it is like this:

Q:   Mr. Witness, I’m going to read the second sentence on page 2 of Exhibit 1. Do you see that sentence?

Q:   “The corporate management team thinks that five copy machines will be sufficient for our purposes.” Did I read that correctly?

Q:   Do you agree with that statement?

[§§1:132-1:139 Reserved]

B.   Situations You Might Encounter

§1:140   The Uncooperative Witness

Every so often, you will encounter a witness who is not intimidated in the slightest by the deposition process and who wants to demonstrate this fact by being rude or flippant. Initially, you should ignore this behavior—refuse to take the bait, as it were—and see whether the witness becomes more cooperative on realizing that these antics will not become a shortcut to having to answer the questions.

When a question is answered flippantly, simply ask the question again. “I’m sorry, but I don’t think you answered fully. Let me ask the question again.”

If this does not work, there are other approaches. If the witness is represented by counsel, you can call a break and have a quick conference with the opposing lawyer. Ask if he or she could step in and control the witness. Often, the other lawyer is embarrassed by the conduct, and will welcome the opportunity to remind his or her client to answer appropriately. If the other lawyer does not want to do this, you can do it yourself: Tell the witness on the record that since his or her conduct would not be appropriate in a courtroom, it is also not appropriate in a deposition. Tell the witness that if he or she does not show the lawyers and court reporter sufficient courtesy—if the witness refuses to respect the process—you will have to stop the deposition to get the judge involved. When you return, it might be at the witness’s own cost.

Some witnesses—doctors, for example—are very aware of the time the deposition is taking. Sometimes it helps to remind the uncooperative witness that the deposition will take much longer if he or she fails to give you straight answers to your questions.

Here’s a final tip: if you suspect ahead of time that the witness will be uncooperative, conduct a video deposition. The presence of a video camera often keeps even the most demanding witnesses in line.

As a last resort, you can seek court involvement. See §1:164 Seeking Judicial Intervention.

§1:141   Practice Tip: Impeachment Nuggets

An impeachment nugget is a question and answer in a deposition about a single fact that can be easily used at trial to impeach a witness who tries to change his or her story. A very simple example:

Q:        The light was green, correct?

A:         “Yes”

If you think in terms of impeachment nuggets as you are taking a deposition, it will help you maintain a clean transcript whenever you are doing the important work of pinning the witness down about key facts. You will remember, for example, to confine your question to a single, simple fact.

You will also remember to keep repeating the question until the witness gives you a straight answer without extraneous information. In the example above, if the witness answered, “Yes, and I thought it was about to turn yellow,” it would be appropriate to say, “I’m going to ask again. The light was green, correct?”

When the witness responds “yes,” then stops, you have an impeachment nugget for trial.

§1:142   The Forgetful Witness

You will be able to spot the forgetful witness by the number of times he or she answers “I don’t remember” to your questions. If true, this is an appropriate response. But when the witness does remember, it’s not; then the witness is telling you a lie.

Based on the witness’s answers to your other questions, you will be able to sense whether the witness is telling you the truth about his or her inability to remember. If you think the witness is credible, you can try to refresh his or her recollection with documents or by telling the witness how other witnesses have testified.

Try this approach: “Mr. Witness, I’ll represent to you that Mr. Clearly testified under oath that you were present at the meeting, sitting just to his right, and that you stopped the meeting during the discussion, stood up, and said you disagreed with the board’s resolution. Does that refresh your recollection as to whether you were at the meeting?”

Another way to refresh a witness’s recollection is by moving on to other questions concerning the same issue, then circling back to the topics that the witness was having trouble remembering. You can also ask the witness directly if there is anything you could show him or her that would refresh his or her recollection about the event.

What if the witness is lying to you? While you cannot force a witness to give you the answer that you want, you can use the witness’s claims of forgetfulness to call the witness’s credibility into question—not only on the questions that he or she does not remember, but on the rest of the testimony as well.

To challenge the witness’s credibility, try the following approaches:

  • Demonstrate that even though the witness claims he or she cannot remember details about the event that are important to issues in the case, the witness can recall insignificant details about the same event.

  • Demonstrate that even though the witness claims he or she cannot remember details about the event at issue, the witness has a clear recollection of other events that happened long before.

  • Establish a pattern of “I don’t remember” answers clustered only around the event that is most critical to the issues in the case.

Keep in mind that if the witness claims he or she cannot remember, you can use this answer to take the witness out completely as a witness in the case on the particular issue. If done properly, the witness’s “forgetfulness” will allow you to present your own uncontradicted testimony on the issue. In order to do this, however, you have to pin down the forgetful witness by asking questions that would make it difficult for the witness to claim later that he or she suddenly remembered the answer.

For example, to preclude the possibility that the witness will claim later that he or she remembered the answer after reviewing documents about the issue, ask the witness during the deposition whether there are any documents you can show him or her that would refresh his or her recollection. When the witness answers no, this will close the door on this route to a newly-refreshed recollection.

§1:142.1   Practice Tip: Assume the Witness Is Lying

There are a number of ways a witness can try to fool you at a deposition. Here are just a few:

  • The witness can knowingly make a false statement. “The light was green,” he might say, when he knows it was red.

  • The witness can state he doesn’t know the answer to your question when, in fact, he knows very well.

  • The witness can say “I don’t remember,” when, in fact, he does remember.

  • The witness can give one of the words in your question a meaning he knows is false, so that he can answer your question in a way that seems to be accurate, though it really isn’t. “It depends on what the meaning of the word is is,” said one famous deponent.

For some more tips about recognizing lies by witnesses see §1:252 Make Sure You Get the Real Answer. If you think the witness is trying to fool you, don’t be bashful about circling around and starting the line of questions from a new angle. Just because the witness is sworn to tell the truth, it doesn’t mean he’s really going to do it.

§1:143   The Witness Who Talks Too Much

Generally, it is not a problem if a witness talks too much; it probably means he or she is not only answering your questions, but volunteering information that might be helpful to your case. There are, however, three issues that might arise in this situation:

  • The witness might be refusing to answer your leading questions with a yes or no answer.

  • The witness might be adding information not called for by the question because he or she thinks it is damaging to your case.

  • The witness might be rambling on about issues that are not relevant to the case in an attempt to stall you.

There are two tools you can use to address these situations. One of them is to simply ask the question again—over and over, if necessary. Say something like, “Thank you, but that’s not what I asked you. Let me ask the question again. At the time of the collision, were your headlights on?” Continue to repeat the question until the witness answers the question succinctly, giving you an “impeachment nugget” as described above in §1:141 Practice Tip: Impeachment Nuggets.

In most jurisdictions, you can also move to strike non-responsive answers by saying, “I move to strike that answer as non-responsive. Here’s the question again . . . .” Since many witnesses think there might be some personal penalty attached to having their answers stricken, this can be quite an effective tool for controlling witnesses.

In rare cases in which the witness refuses to answer your questions, you might have to seek judicial intervention. See §1:164 Seeking Judicial Intervention

§1:144   Practice Tip: Asking Follow-Up Questions

Creating an outline is the most efficient way of formalizing your preparation for a deposition. But be careful: deposition outlines can pose a hazard if you become too fixated on following them word for word. There are countless stories of inexperienced lawyers who are so timid about straying from their outlines that they fail to follow up on a witness’s answers when something helpful is volunteered.

The solution is simple: consider your outline merely a starting point or a checklist, and then be flexible enough to respond to the witness’s answers with appropriate follow-up questions.

Once you have enough experience forming succinct deposition questions on the fly, you can change your deposition outlines so that they only contain a list of topics. This way, the process of asking good follow-up questions will happen naturally.

§1:145   The Witness Who Talks Too Little

Witnesses who have been told by their lawyers “don’t volunteer” sometimes become unwilling to answer any question at all. You will recognize this type of witness by the way they seem to cut off their answers in mid-phrase, saying something like “and then we,” and then stopping.

This is a problem that is easily handled by drawing out full answers with another question. “And then you what?” You can also ask open-ended questions (“Tell me what you remember about the collision?”), teasing out the full story with follow-up questions like, “What happened next?”

Handling the witness who talks too little is really a process of retraining the witness to forget his or her lawyer’s warnings not to volunteer information. It usually takes only a few minutes of prodding with simple follow-up questions before the witness starts acting like a normal person again.

§1:146   The Difficult Opposing Counsel

There are a number of things your opposing counsel might do to rattle your concentration: improper objections, loud sighs, rattling of a newspaper, etc. The best way to respond to this type of behavior is to ignore it. Focus on the deponent and your game plan and refuse the opposing lawyer’s invitation to be drawn into an argument. In fact, you should simply pretend he or she is not there, unless opposing counsel makes an objection to one of your questions that is worthy of your consideration.

As for objections, use the advice in the next section, V. Objections at Depositions, in deciding how to respond. If objections are interposed merely to slow you down and become so intrusive that they are obstructing your ability to finish the deposition, consider seeking court involvement. This is covered in §1:164 Seeking Judicial Intervention.

You might also have to seek judicial intervention if your opponent is making speaking objections—that is, making an objection in such a way that it signals an answer to the witness. Though court rules generally prohibit this behavior, it still goes on. If your opponent makes a speaking objection, you should warn him or her right away that you will not tolerate it, as in the following example.


Q:   Before the collision occurred, did you see the brake lights on the car you collided with?

Opposing Counsel:   Objection, form. That question is confusing. The witness has already testified that the accident happened so quickly that he doesn’t remember everything that happened. Your question assumes that he remembered everything. That’s my objection, but Mr. Witness, subject to that, you can answer.

You:   Wait, Mr. Witness. Counsel, that’s a speaking objection. It’s improper. Please don’t do it again. If you do, I’m going to stop this deposition and file a motion.

You should not have to tolerate speaking objections. Most lawyers will stop once they know you are on to them. If they do not, you have no choice but to assert your rights by seeking judicial intervention.

§1:147 Practice Tip: How to Spot Liars—Ask for the Story in Reverse

Psychologists at the University of Portsmouth in Great Britain devised a useful method for police detectives to spot liars: ask the witness to repeat the story in reverse.

The idea is that a made-up story is difficult enough to remember in the right order. If asked to remember the story in reverse, the witness is bound to make mistakes.

Will the technique work in depositions? Maybe so. Try it out in a case that involves both a central, key narrative, like a car accident or a work injury, and a witness who has a strong motive to lie.

T. Evan Schaeffer began his career as a defense lawyer, but since 1996 has worked primarily on the plaintiffs’ side. Schaeffer’s areas of practice include complex commercial and tort litigation, including mass torts and class actions, as well as general civil litigation. Mr. Schaeffer’s publications include articles and essays in many newspapers and magazines, including the Chicago Tribune, the Houston Chronicle, theSt. Louis Post-Dispatch, and theIllinois Bar Journal. Mr. Schaeffer also publishes two weblogs, The Illinois Trial Practice Weblog and Evan Schaeffer’s Legal Underground.  Mr. Schaeffer is the author of Deposition Checklists and Strategies, from which this article is excerpted.

   Updated 08/12/13