By T. Evan Schaeffer

Deposition Checklists and Strategies

Excerpted from Deposition Checklists and Strategies

In a slip and fall case, if the fall occurred at a store, you will probably want to depose:

  • The store personnel who were witnesses to the occurrence.
  • Personnel who can testify about whether particular management policies might have contributed to the injury.

In the example used here, the particular deponent (a store manager) falls into both categories.

§3:111 Timing

Store-management witnesses are often identified by the defendant in response to your initial discovery, especially if the defendant plans to use these witnesses at trial.

The identity of other witnesses (especially those that help your case) might require further investigation.

You can depose any of these witnesses as soon as you have obtained the documents that you plan to use at the deposition. For information on documents used at the deposition, see §3:123 Deposition Exhibits.

[§§3:112-3:119 Reserved]

Goals, Strategy and Preparation

§3:120 Deposition Goals

The goals of the deposition of a management-level employee in a slip-and-fall case are similar to the deposition goals in any personal injury case: to learn new facts that you did not know, and to obtain admissions and to learn what defenses the defendant may use at trial.

Another goal of the deposition of the management-level witness is to preview his testimony before trial and pin him down so that he cannot change his testimony later.

For testimony to be admissible as an admission, the management-level witness must be able to bind the corporate defendant. For admissions, see generally §3:181 Practice Tip: Admissions.

§3:121 Deposition Strategy

Especially when the witness either saw or played a role in the occurrence, the simplest way to proceed is chronologically: after asking background questions, you can take the witness through the occurrence step by step.

After the witness has been questioned about the occurrence, you can ask about the policies that might have played a role in the occurrence.

Other strategies are determined by the witness’s personality and manner in answering questions. Typically, you should be friendly and non-confrontational, in the hope that this will encourage the witness to volunteer more information than he otherwise might. If the witness reacts with hostility, change your manner accordingly. With the right tone, it will not take long for the witness to realize that you are in the driver’s seat: that you will be asking the questions and that he is duty-bound to answer.

For other general suggestions about deposition strategy, see Ch. 1 Deposition Procedures and Strategies.

§3:122 Deposition Preparation

Review the entire file before each deposition. At a minimum, you should:

  • Review the pleadings to be aware of all the relevant issues about which you might want to question the witness.
  • Review the interrogatories to find out whether and how the witness has been mentioned.
  • Review the case documents.
  • Review previous depositions to find out what other witnesses have said about the topics of inquiry.

While conducting your review, jot down your ideas for areas of inquiry you will want to cover. These “big picture” issues, when rearranged into a logical pattern, become the basis for your deposition outline.

§3:123 Deposition Exhibits

When reviewing the case file in preparation for the deposition, pay careful attention to any documents on which the witness’s name appears or which the witness might have had a role in preparing.

Organize the documents you think you might want to use at the deposition. Make several copies of each: one for the witness, one for the opposing counsel, and one for you.

For more about documents in a premises-liability case, see II.B. Documents and Exhibits (§§3:60 et seq.).

[§§3:124-3:129 Reserved]

The Deposition Outline

1.    Background and Thumbnail Outline

§3:130 Background Facts

In this case, a 46-year-old man named “Mr. Smith” slipped in a grocery store, fell and developed a shoulder injury called adhesive capsulitis.

Mr. Smith alleges that he rounded the end of one of the aisles in the grocery store, continued into the next aisle, and then stepped in some orange juice that had spilled there. There was a yellow barrier on one side of the puddle, but he could not see it when he was turning the corner into the aisle. In addition, just before the accident, a store employee who was giving out free samples to his right distracted him.

The owners of the store contend that they properly warned of the spill, which was in the process of being cleaned up. The owners also argue that even without the barrier, Mr. Smith should have seen the spill.

§3:131 Thumbnail Outline/Deposition Checklist

The basic outline of this sample deposition of a store manager in a slip-and-fall case is as follows:

  • Preliminary Questions
  • The Witness’s Background, Including Employment History
  • The Witness’s Preparation for the Deposition
  • Store Inspection Program and Practices
  • The Occurrence: Facts About the Fall
  • Preliminary Questions
  • The Condition of the Store
  • Were Inspection Procedures Followed?
  • Facts About the Spill
  • The Plaintiff’s Fall: What the Witness Saw
  • The Scene After the Fall
  • The Witness’s Actions To Aid the Plaintiff
  • Admissions
  • Use of Marketing Displays
  • Plaintiff’s Status as Invitee
  • Other Witnesses
  • Change in Practices
  • Discipline of Employees
  • Conversations About the Accident or the Lawsuit
  • Plaintiff’s Contributory Negligence
  • Other Similar Incidents
  • Closing Questions

[§§3:132-3:139 Reserved]

2.    Preliminary Questions

§3:140 Standard Introductory Questions

After the witness has been sworn, you should begin the deposition with the standard set of preliminary questions, such as the following:

Q:    Please state your name for the record.

Q:    Where do you live?


One reason to ask where the witness lives is to find out whether the witness is subject to the court’s jurisdiction if you need to subpoena the witness for trial. This is why some lawyers follow up with a second question, “Do you have any plans to move?”

Q:    What is your date of birth?


Asking the witness’s date of birth might help you to recall the witness’s age and appearance later when you or others are reading the deposition without being able to look at the witness.

Q:    Have you given a deposition before?

Q:    On how many occasions?


In this deposition, the primary reason for asking whether the witness had been deposed before was to find out whether he is familiar with deposition procedures. For most witnesses, a deposition is a rare occurrence. If it turns out the witness has past deposition experience, you can preface some of the questions that follow with, “As you know from your past experience . . . .” This will make it easier for you to impeach the witness at trial with his deposition testimony.

If the witness has had prior deposition experience, you should find out the reason. This might reveal past depositions in cases similar to yours. If so, follow up with questions about the name of the case, the court, and the lawyers, so that you can find out more about the case in later discovery.

Q:    I want to tell you some ground rules for this deposition, is that all right?

Q:    The court reporter is taking down everything we say, so it is important that you answer with words, rather than with a nod or shake of the head. Do you understand?

Q:    To make it easier for the court reporter to record what we say accurately, it’s important that we not talk over one another. For this reason, I ask that you please wait until I have finished my question before answering. Is that okay?

Q:    You understand that you are under oath today?

Q:    And sworn to tell the truth?

Q:    You understand that even though we’re in an informal setting, your testimony has the same force and effect as if we were in front of a judge and jury?

Q:    If you don’t understand one of my questions, please let me know, and I’ll rephrase it. Is that okay?

Q:    If you need to take a break, let me know, and we can take a break. Okay?

Q:    Are you prepared to answer my questions today?

Q:    Is there any reason you won’t be able to give me full, complete and truthful answers to my questions today?


The previous two questions are designed to prevent the witness from changing his testimony later and claiming, by way of explanation, that he was not fully prepared to give his deposition. The last question also seeks to prevent another convenient excuse for changing deposition testimony: that the witness was taking medication that confused him or impaired his memory. To get right to the point, you can vary the question by asking, “Are you taking any medication, or suffering from any illness that would prevent you from understanding my questions or answering them fully?”

Finally, you will notice that the last question is technically objectionable as a “compound question.” You will save time by asking the question in the way that it is printed, but if the opposing lawyer objects, simply break the question into its component parts. If the lawyer does not object to form, the objection to the compound nature of the question will be deemed to be waived.

For more about the purposes of the standard preliminary questions in a deposition, see §1:100 Preliminary Questions. For reasons you might want to ask the preliminary questions a little later in the deposition, see §1:102 Practice Tip: Mixing It Up.

§3:141 The Witness’s Background, Including His Employment History With the Defendant

When the deposition begins, you may know very little about the witness’s background other than his job title. In this deposition, the witness’s job title is “Store Manager.” How long has he held this title? Has he worked for other similar companies? What training did he have? By delving into the witness’s employment history, you can see whether there is actually a factual basis for the claims the witness will make during the deposition. The answers to these foundational questions might also suggest other questions you would not otherwise have thought to ask.

Q:    Please describe your educational history to me, beginning with high school.


One reason to ask about a witness’s educational background is to round out your picture of the witness and get a sense as to how he might “play” to a jury. Another reason is to find out whether any advanced education or special training might qualify the witness to testify as an expert on the defendant’s behalf. Sometimes, however, this line of questions can be omitted entirely. See generally §3:142 Practice Tip: Know Why You Are Asking Each Question.

Q:    Have you ever been convicted or pled guilty to a any crime other than a minor traffic violation?


Why is this question important? Depending on the date of the conviction or plea, you might be able to get evidence of past conviction in front of a jury in order to impeach the credibility of the witness. For more on the importance of the question, see §1:53 Practice Tip: Ten Things to Cover In Every Deposition. If you are worried that asking the question will alienate the witness, preface it with something like, “I apologize for asking, but I need to and the rules allow it: Have you ever been convicted or pled guilty to . . . .”

Q:    What is your business address?

Q:    Could you tell me your employment history since high school—in other words, what jobs have you held?

Q:    When did you begin working for the Defendant?

Q:    Have you ever worked for other grocery store chains?

A:    “Yes, A&U Grocers.”

Q:    What did you do for them?

A:    “I was the head cashier.”


This answer will be taken up again and addressed in §3:152 Store Inspection Practices at Other Stores.

Q:    What is your title with your present employer?

A:    “Store Manager.”

Q:    How long have you held the title “store manager”?

Q:    What other titles have you held since you began working for the Defendant?


The answer to this question will reveal the witness’s work history with the defendant. It is another foundational sort of question that might reveal other aspects of the witness’s background that can lead to other questions later in the deposition.

Q:    What are your job duties as Store Manager?

Q:    Who do you report to within the company?

Q:    And who does he report to within the company?


If you get into the habit of asking questions such as the previous two, you will develop organizational charts as you depose case witnesses. This will help you to understand the dynamics of the company and may also suggest further witnesses to depose. While you can always ask for an organizational chart in written discovery, sometimes a corporate defendant does not have one to produce. In other cases, they are out of date or otherwise incorrect.

Q:    What sort of training have you had that would qualify you to work as the store manager?

§3:142 Practice Tip: Know Why You Are Asking Each Question

Many depositions go on longer than is really necessary. While this is certainly not a crime, learning to streamline your depositions saves you time and money, especially when the depositions you take begin to number in the hundreds.

One tip for streamlining your depositions is to understand why you are asking each question. With proper planning, you should go into a deposition with a good idea of what you hope to accomplish, how the deposition fits into the overall discovery plan, and how the deposition will be used at trial.

§3:143 The Witness’s Preparation for the Deposition

You can learn a lot about a witness by finding out how he prepared for a deposition:

  • How seriously the witness took his obligation to testify.

  • Whether he was worried about some issues more than others.

  • What documents he considered important enough to look at before the deposition started.

In many cases, you will learn that a witness did not do anything at all to prepare for a deposition. If not, you have not wasted any time by asking.

Q:    When did you first learn of this deposition?

Q:    How did you learn about it?

Q:    What did you do to prepare for the deposition today?

Q:    Did you review any documents in preparation for the deposition today?

Q:    What documents did you review?

Q:    Did you have any communications with anyone about your deposition today, other than your lawyers?


If the witness says yes, find out who they communicated with and the subject and purpose of the communication. If the witness had conversations with a lawyer who does not represent the witness, ask about those conversations too.

[§§3:144-3:149 Reserved]

3.    Inspection Program and Practices

§3:150 Store Inspection Program

Those who manage stores open to the public normally take active steps to ensure that unnecessary accidents do not happen on their premises. In a grocery store, this usually means a specific employee is assigned to walk through the store on a regular basis and look for obstructions, spills, and so on.

Normally these regular inspections are documented on a form of some sort. In addition, there is a separate procedure for cleaning spills. The following questions are designed to elicit information about these sorts of procedures.

Q:    How many times per day is the floor in the store cleaned?

A:    “It’s completely mopped once a day at 4 a.m.”

Q:    What specific procedures are followed in cleaning the store each day?

Q:    Are those procedures written down anywhere?

Q:    Is the store regularly inspected for hazards during business hours?

Q:    What employees are responsible for inspecting the store?

Q:    What are their job titles?

Q:    Who was responsible for inspecting the store the day of my client’s fall?


Why say “the client’s fall” rather than “the accident”? Lawyers representing plaintiffs are well advised to banish the term “accident” from their vocabularies. You are trying to collect from the defendant, yet jurors might think that no one should be held responsible for an “accident.” Call the incident something else.

Q:    Are there written procedures that explain what an employee is supposed to do when inspecting the store during business hours?

Q:    Who wrote those procedures?

Q:    What are they called?

Q:    I’m handing you what I’ve marked Exhibit A: “Are those the procedures?”

Q:    And were those procedures followed on the day of my client’s fall?

Q:    How do you know?

Q:    After the store is inspected, is that fact recorded anywhere?

A:    “Yes, on the cleaning sheet.”

Q:    Do employees who are responsible for regularly inspecting the stores have to undergo any training to do their job properly?

A:    “I train them myself.”

Q:    And what does that training entail?

Q:    If I ask the employees who were on duty that day whether they were trained, what will they tell me?

A:    “They’ll tell you they were trained.”


This is the sort of question you can ask if you think the witness is beginning to make things up. It reminds him that there other sources of information other than his own recollection, and that you are not afraid to explore them.

Note: These general questions about store procedure form the background for more specific questions in §3:163 Whether Inspection Procedures Were Followed.

§3:151 Practice Tip: Industry Practice

Earlier in the deposition, you asked questions about the witness’s employment history. If the witness revealed that he worked for other companies in the same industry (in this case, another grocery store chain) then you have established a foundation to ask the witness about typical industry practice on contested issues.

For example, you might ask the witness how the current grocery store’s “store inspection program” compared with that of the other chain of grocery stores that previously employed him. Or you might ask how the other stores warned about spills after they were discovered.

In order to use this type of evidence at trial you will have to overcome a relevancy objection from your opponent. The merits of this objection will vary from jurisdiction to jurisdiction.

§3:152 Store Inspection Practices at Other Stores

In earlier questioning, the witness revealed that he was once the “head cashier” at another grocery store. In the following questions, you will ask the witness about the inspection procedures at the other store.

Q:    You told me previously you worked at how many other grocery chains?

A:    “One.”

Q:    What was it called?

A:    “Grocery Time.”

Q:    How many Grocery Time store locations did you work at?

A:    “Just one.”

Q:    For how long?

A:    “Four years.”

Q:    And that’s the store at which you became head cashier?

A:    “Yes.”

Q:    At the Grocery Time store, were you familiar with the store inspection procedures?

A:    “Yes.”

Q:    How did you become familiar with those procedures?

A:    “For a while, I was responsible for checking the store according to the procedures. Then as head cashier, I had to make sure others were doing it.”

Q:    Did the procedures change during the time you were at the Grocery Time store?

A:    “No.”

Q:    Please describe the procedures to me.


At this point, follow up as necessary to learn exactly what the procedures were. The most relevant questions will deal with procedures at other stores that were most similar to those procedures that might have been breached in your own case. In the example, the witness only had knowledge of procedures at one other store. In some cases, however, a witness might have wide knowledge of industry practice at other locations. If so, take the opportunity to learn all you can.

§3:153 Caution: Laying the Proper Foundation

The following questions are foundational questions designed to find out whether the witness has the personal knowledge on which to answer the questions that will follow:

Q:    At the Grocery Time store, were you familiar with the store inspection procedures?

Q:    How did you become familiar with those procedures?

If you get into the habit of laying a proper foundation, you will avoid evidentiary problems later. If you stay attuned to laying a proper foundation, you will also hone your ability to object at your opponent’s depositions when he fails to lay a proper foundation.

[§§3:154-3:159 Reserved]

4.    The Occurrence

§3:160 Preliminary Questions

When beginning a series of questions about an occurrence, you can begin with open-ended questions to set the stage.

An open-ended question is one that is not leading and that calls for a narrative response. All of the following questions are open-ended questions.

Q:    Tell me what happened on the day my client, Mr. Smith, allegedly fell in your store?

Q:    How did you find out Mr. Smith had become injured?

Q:    What did you do?

§3:161 Practice Tip: Open-Ended Questions to Set the Stage

When asking about a particular event during a discovery deposition, starting with open-ended question allows the witness to tell you most of what he knows in a single answer. If the question succeeds in generating a long response, you can take notes as the witness is speaking, then follow up with specific questions about what the witness has just said. Any testimony that is particularly good for your case should be made the subject of a separate, short question designed to pin the witness down.

Some well-prepared witnesses might not be willing to give a narrative response to an open-ended question, and will answer a question like “What happened?” with a one or two-sentence response, e.g., “He said he slipped on something. After that, we got help.”

If you want to encourage a longer response, modify the question by asking something along the lines of, “Tell me everything you know about my client’s fall.” The reason for trying another open-ended question is to encourage the witness to tell you things you might not otherwise ask about.

If the witness cannot be encouraged to give a narrative response, you will have to proceed with specific, step-by-step questions (e.g., “What happened then? And then?”) until you have fleshed out the entire story.

§3:162 The Condition of the Store

The following questions are designed to find out basic background information about the area in which the plaintiff fell. You will already know a lot of this information from written discovery and from talking to your client. The questions are easily modified for an injury occurring outdoors.

Q:    Mr. Smith fell in aisle 11, is that right?

Q:    Are you familiar with the condition of the floor in aisle 11 on the date of Mr. Smith’s injury?


This is a foundational question to confirm the witness has personal knowledge.

Q:    How is the floor in the area of aisle 11 constructed?

A:    “I think it’s concrete underneath. On top of it is some type of tile.

Q:    Do you know what the tile is made of?

A:    “No.”

Q:    What was the condition of the tile in the area of aisle 11 in the day before my client was injured?

A:    “The floor and tile were in good condition.”

Q:    You told me earlier in the deposition that the floor is mopped once a day. Is that correct?


This answer was given in response to the first question in §3:150 Store Inspection Program.

Q:    Was it mopped on the day of the injury?

A:    “Yes.”

Q:    How do you know that?

A:    “First, I was there and I remember it. Second, it’s charted on the cleaning sheet for the day.”

Q:    Let me hand you what I’ve marked Exhibit B. Is that the “cleaning sheet” for February 15, 2005?

A:    “Yes.”

Q:    What does it say about the time the floor was mopped?

A:    “At 4 a.m. in the morning.”

Q:    Had the floor of the store dried before the Plaintiff was injured?

A:    “The floor had been dry for hours.”

Q:    Was there anything unusual about the lighting in aisle 11?

A:    “No.”

Q:    Was the area in aisle 11 lit with fluorescent lights?

Q:    And the lights are in working order?

Q:    Does the tile on the floor in the area of aisle 11 have any sort of non-stick surface?

A:    “No.”

Q:    And spills do occur from time to time?

A:    “Yes.”

Q:    What steps do you take to prevent customers from slipping on spills in your store?

A:    “First of all, we hope our customers are careful about where they’re walking. Second, we inspect the store for spills. Third, when we find a spill, whether it’s during an inspection or by other means, we put up barriers and clean up the spill right away.


In the first part of the answer, the witness suggests that the plaintiff might be at fault in the accident. For follow-up questions, see §3:211 Plaintiff’s Contributory Negligence.

Q:    Is there anything else you do to prevent customers from slipping on spills in your store?

A:    “No.”

Q:    What other ways do you find out about spills, other than the regular inspections you told me about?

A:    “Employees always have their eyes open. And often, customers tell us.”

Q:    How do you know that employees are always on the watch for spills?

§3:163 Whether Inspection Procedures Were Followed

In the previous section, the witness testified that the area of the floor where the plaintiff was injured was mopped earlier in the day. The questions in this section are designed to find out whether the store’s usual cleaning procedures were followed.

Q:    Please take a look again at Exhibit B, which is the “cleaning sheet.” Do you see the entries for the day of my client’s fall?

Q:    The chart has a line for the daily mopping?

Q:    That’s something we already talked about?

Q:    The chart for each day also includes a line next to each hour in the day?

A:    “Yes.”

Q:    What are the lines for?

A:    “The employee initials the line each hour after the store is inspected.”

Q:    Each hour, an employee inspects for spills?

A:    “Spills, yes, and any other problem.”

Q:    What other problems?

Q:    Exhibit B contains sheets for each day of the two months leading up to the accident?

A:    “Yes.”

Q:    Flip through those sheets—do you see any in which there are not initials next to each hour in the day?

A:    “Only one.”

Q:    That’s the day of Mr. Smith’s injury?

A:    “Yes.”

Q:    When is the last entry on the day of Mr. Smith’s injury?

A:    “10 a.m.”

Q:    Can you tell by the initials which employee made that entry?

A:    “Yes, Patty Harolds.”

Q:    Do you know when that employee’s shift ended?

A:    “10 a.m.”

Q:    What employee took over?

A:    “Matt Parlance.”

Q:    And Mr. Parlance was responsible for inspecting the store each hour from 11 a.m. on until his shift ended?

A:    “Yes.”

Q:    Did he do that on the day of Mr. Smith’s injury?

A:    “He told me he did.”

Q:    Yet he didn’t initial the cleaning sheet?

A:    “No, he didn’t.

Q:    Do you know why not?

A:    “No.”

Q:    Have you done anything to find out why the cleaning sheet is blank after 10 a.m. for the day my client was injured?

A:    “No.”

Q:    Doesn’t the fact that the cleaning sheet is blank mean that your employees failed to inspect the store for spills as you require them to do?

A:    “Not at all. I know that Mr. Johnson, another store employee, saw the spill, because he was in the process of cleaning it up when your client slipped.”

Q:    Do you know whether it was Mr. Johnson who discovered the spill?

A:    “No.”

Q:    And you don’t know whether or not he discovered it during the required hourly inspection, do you?

A:    “No, I don’t.

Q:    Do you know when the spill was discovered?

A:    “No.”

Q:    Do you know when Mr. Smith fell?

A:    “About 2:45 p.m.”

Q:    And the store is supposed to be inspected at the top of each hour?

A:    “Yes.”

Q:    Do you know how long before Mr. Smith fell that the spill was discovered?

A:    “I assume just shortly before.”

Q:    You don’t know which store employee saw the spill first?

A:    “No.”

Q:    And you don’t know when that first employee first discovered it?

A:    “No.”

§3:164 Facts About the Spill

So far in the deposition, the substance on the floor has not been identified. What was it? The questions about the occurrence continue in this section with these additional questions about the spill.

Q:    Did you see the spill at any time before Mr. Smith fell?

A:    “No.”

Q:    What was it that was spilled on the floor?

A:    “Orangejuice.”

Q:    How do you know it was orange juice?

A:    “I spoke with the employees later, and they had identified it.”

Q:    Which employees did you speak to?

A:    “Actually, just Mr. Johnson.”

Q:    And what did he tell you?

A:    “That it was an orange substance and smelled like orange juice.”

Q:    Did you see the spill after Mr. Smith fell?

A:    “No.”

Q:    Why not?

A:    “Again, talking to employees, they said that Mr. Smith fell in the area of the spill.”

Q:    Mr. Smith landed in it, didn’t he?

A:    “I don’t know where he landed, exactly.”

Q:    In any event, when you became involved in helping Mr. Smith, you couldn’t determine what sort of substance had spilled?

A:    “That’s right.”

Q:    What other store employees saw the spill before Mr. Smith fell?

A:    “To my knowledge, just Mr. Johnson.”

§3:165 The Plaintiff’s Fall; What the Witness Saw

Through answers to written discovery, as well as the previous answers, it is suspected that the store manager who is testifying in this deposition was not an eyewitness to the fall. If he were, his observations about the fall and how it occurred would be very important, as is true of all eyewitnesses.

The following questions are designed to make sure that the store manager was not an eyewitness, and to learn how he first learned about the fall.

Q:    You did not see Mr. Smith fall, is that right?

Q:    Did you hear him fall?

A:    “No.”

Q:    How did you find out about the fall?

A:    “First, I heard a little commotion, then one of the cashiers told me.

Q:    Where were you at that time?

A:    “In my office.”

Q:    Where is your office in relation to aisle 11?

Q:    Was your door open?

A:    “Yes.”

Q:    You said you heard a “commotion.” Could you be more specific?

A:    “I’m not sure. Some raised voices. It might not have even been related to the accident.”

§3:166 The Scene After the Fall

From answers to written discovery, it has become apparent that the defendant will argue that the plaintiff was being careless when he slipped in the orange juice. According to the defendant, the store employee named Mr. Johnson had placed a yellow caution sign on the floor when he discovered the spill, and was in the process of getting a mop when the fall occurred.

The plaintiff will argue that the caution sign marked only one side of the spill, the side opposite the end of the aisle. As the plaintiff rounded the corner and turned into the next aisle, he slipped before seeing the caution sign.

In addition, just before the plaintiff fell, he had been hailed by another store employee to his right, who was handing out free samples of a “gourmet hot dog.” This was an additional distraction that prevented him from seeing the spill.

In this section, the questioning turns to the scene of the fall. The goal is to see whether the witness agrees with the plaintiff’s version of the events as to: (a) the lack of a barrier on both sides of the spill and (b) the existence of the store employee handing out free samples.

Q:    You arrived at the scene shortly after Mr. Smith fell?

Q:    How many yellow barriers were there?

A:    “One.”

Q:    The purpose of those barriers is to put customers on notice of potential danger?

A:    “Yes.”

Q:    How many barriers does the store have?

A:    “Five or six.”

Q:    Are they all kept in the same location?

A:    “Yes.”

Q:    Where is that?

A:    “In a storage room in the back.”

Q:    When you arrived at the scene after Mr. Smith’s fall, was he between the barrier and the end of the aisle?

Q:    Do you know the placement of the barrier before Mr. Smith fell?

A:    “No, not exactly.”

Q:    If I wanted to find out about the exact placement of the barrier before Mr. Smith fell, would the best way be to ask Mr. Johnson, who was the store employee who set it up?

A:    “Yes.”

Q:    Mr. Johnson said there was another store employee handing out samples in the area where he fell. What do you know about that?

A:    “There was someone standing at the end of that aisle.”

Q:    What was that employee’s name?

A:    “Mrs. Taylor.”

Q:    Did you talk to Mrs. Taylor about Mr. Smith’s fall?

A:    “Yes.”

Q:    Tell me about that conversation.


In response, the witness says that he asked Mrs. Taylor what happened, and she said that she was looking away when it happened, and that it all happened so quickly that she did not get a good look.

Q:    Did you ask her if she said something to Mr. Smith just before he fell?

A:    “No, I didn’t ask her that.”

§3:167 The Witness’s Actions to Aid the Plaintiff

One of the main goals of this deposition is to both learn new facts about the occurrence and to pin down the witness about those facts. Since the witness is likely to be hostile toward your position, you want to learn ahead of time what he is likely to say at trial while taking away his opportunity to change his story later.

In order to find out what the witness observed, it is necessary to take him through the occurrence step-by-step. The next step is to find out what the witness did after arriving at the scene of the plaintiff’s fall.

Q:    What did you observe as you arrived at the place where Mr. Smith fell?

A:    “He was lying on the floor.”

Q:    Was Mr. Smith moving?

A:    “Not very much.”

Q:    Was he making any sounds?

A:    “Yes.”

Q:    Did he appear to be in pain?

A:    “I don’t know exactly what he was feeling.”

Q:    Was he moaning?

A:    “Yes.”

Q:    He was a guest at your store, wasn’t he?

A:    “Yes.”


This question is a subtle reminder that even though the plaintiff is now suing the store and the witness might be naturally hostile to his position, at the time of the fall, the situation was different: the plaintiff was a store customer and the store manager would naturally want to aid him. In this way, it sets the witness up to answer the next question honestly. To imagine the effect, try reading through the questions without the previous question.

Q:    And you took steps to help him?

A:    “Yes.”

Q:    What did you do?

A:    “I kneeled down next to him and asked him if he was all right. He wasn’t very responsive. He said that he was hurt. I asked him if he hit his head and he said he didn’t remember.”

Q:    Was he holding his shoulder?

A:    “I don’t remember.”

Q:    Mr. Smith said in his deposition that he was holding his shoulder immediately after falling. Does that refresh your recollection as to whether Mr. Smith was holding his shoulder?

A:    “No. I still don’t remember.”


A witness’s memory can be refreshed with any sort of document or testimony, so this is a proper question. Now that the witness has been pinned down to say he does not remember what happened, you have effectively prevented him from contradicting your client’s testimony at trial. The point is an important one, too, since the defendant will be disputing that the fall caused the shoulder injury.

Q:    What did you do next?

A:    “I assigned the assistant manager, Miss Bauman, to wait with Mr. Smith while I went to call an ambulance.”

Q:    Why did you call for an ambulance?

A:    “I was afraid that Mr. Smith might have hit his head. I wanted to take proper precautions.”

Q:    One of the reasons you called for an ambulance was that Mr. Smith seemed to be in pain, correct?

A:    “Yes.”

Q:    How long did it take for the ambulance to arrive?

Q:    What did you do next?

A:    “After Mr. Smith was gone, I had someone make sure the floor was clean in that area.”

§3:168 Practice Tip: Always Be on the Lookout for Facts With Jury Appeal

When taking a deposition, always be alert for facts that will help make your case stronger before the jury.

For example, in the previous section there was an opportunity to question the witness about the plaintiff’s pain. When you encounter facts like these, take the time to pin the witness down. If the witness appears live at trial, the deposition can be used to impeach him if he changes his story. If the witness appears by deposition, the helpful questions and answers can be read aloud to the jury.

[§§3:169-3:179 Reserved]

5.    Admissions

§3:180 Use of Marketing Displays

In many slip-and-fall cases, the defendant will argue that the plaintiff was not paying attention and should have noticed the particular risk.

In the present case, the plaintiff claims not only that the spill was not properly barricaded, but that he was distracted just before the accident by a store employee who was giving out free samples. See §3:130 Background Facts.

In the following section, you will simply try to get the witness to admit an obvious point: that the store owners set up their “free sample” displays intending that they be seen and noticed. This admission will help bolster the plaintiff’s contention that he was distracted by the display.

Q:    At the time Mr. Smith fell, there was a woman handing out “free samples”; is that correct?

Q:    What is her name?

Q:    Did she prepare the display herself?

A:    “Yes.”

Q:    When she set up the display, was she following your instructions?

Q:    What’s the purpose of handing out free samples?

Q:    Am I correct that you set up free-offer displays in areas which you know will be trafficked by customers?

Q:    You wanted customers to notice the display?

Q:    And you want customers to accept the offer of a free sample?

Q:    When setting up your display, one of your goals is to do it in such a way that customers will notice it?

§3:181 Practice Tip: Admissions

At every deposition of corporate-level employees or individual defendants, be prepared to obtain admissions.

Which admissions? Think about what you plan to say in your opening statement and your closing argument. Will some of these facts on which your case relies be offered to you from your opponent? If so, these are admissions you might want to obtain in your deposition.

You might obtain admissions at any point in the deposition. In a previous section, for example, the witness admitted that the plaintiff seemed to be in pain after he had fallen. Another admission will be obtained in the section that follows: that the plaintiff was an invitee in the grocery store.

In its technical evidentiary sense, an “admission” obtained in a deposition is admissible at trial despite the hearsay rule. This means that even if the witness does not show up for trial, you can read admissions into the record during your case in chief.

For the testimony of a corporate-level employee to be admissible as an admission, the employee must be able, under the law of your jurisdiction, to bind the corporate defendant.

§3:182 Admission: Plaintiff’s Status as Invitee

In many cases, the fact of the plaintiff’s status will not be in dispute.

For example, in the case on which this deposition is based, it is unlikely that the defendant would dispute that the plaintiff had permission to be in the store and was there in order to shop. Since the fact will probably not be in dispute, it can be handled by stipulation, by use of a request for admission, or by questions during a deposition.

Q:    Was Mr. Smith at the store alone?

A:    “I’m not sure, but I assume so.”

Q:    Had you ever seen him in your store before?

A:    “No.”

Q:    He was in the store to shop?

A:    “I don’t know.”

Q:    Did he have a grocery cart filled with groceries?

A:    “Yes.”

Q:    Let me ask you again: Was Mr. Smith in the store to shop?

A:    “Yes.”

Q:    And he had permission to be in the store?

A:    “Yes.”

[§§3:183-3:189 Reserved]

6.    Other Witnesses

§3:190 Other Witnesses to the Occurrence

In your first round of written discovery, you probably asked about witnesses to the occurrence. But you should also ask again in the deposition. If the deponent knows about people who might contradict the plaintiff’s version of events, it’s best to find out about it as soon as possible.

Q:    To your knowledge, did anyone see Mr. Smith fall?


If the defendant has already answered the initial discovery with a long list of witnesses, you can speed up the questioning by asking a question like this: “I’ll represent to you that in answers to interrogatories, the defendant stated that X, Y and Z witnessed the accident. Are you aware of other witnesses to the accident other than X, Y and Z?”

Q:    Other than yourself, who assisted Mr. Smith after he fell?

§3:191 Practice Tip: Offer to Pay Medical Bills

In slip-and-fall cases, it is not uncommon for a property owner to offer to pay a customer’s medical bills.

Is payment of medical bills admissible at trial as an admission of negligence? The answer is almost always no. In almost every state, payment of medical bills is not admissible as evidence of negligence. Federal Rule of Evidence 409 is in accord: “Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.”

Despite this rule, an admission about liability made as a statement during an offer to pay medical expenses may be admissible in some jurisdictions (e.g., “I’m paying your medical bills because I ran the red light and it was my fault.”) The factual admissions will generally not be excluded merely because they were made as part of an offer to pay medical bills.

[§§3:192-3:199 Reserved]

7.    Defendant’s Response to the Occurrence

§3:200 Subsequent Remedial Measures

The evidentiary rules in your jurisdiction might prevent you from eliciting evidence during trial of “subsequent remedial measures,” including the ways the defendant changed its practices as a result of the occurrence. See §3:201 Practice Tip: Evidence of Subsequent Remedial Measures.

Even if you think the evidence will not be admissible, this should not keep you from asking about it. If the answers might help you prove that a negligent condition existed before the occurrence and contributed to its cause, you can spend additional time seeking ways to introduce the evidence at trial. Your efforts might have the added benefit of making your opponent wonder whether you will succeed, which could increase the settlement value of your case.

Q:    Following Mr. Smith’s fall, did you change any store policies or procedures concerning the cleaning or inspection of the store?

A:    “No.”

Q:    Following Mr. Smith’s fall, did you change the way that employees are required to document their cleaning or inspection of the store?

A:    “Only that I’ve been checking the cleaning sheet a little more often.”

Q:    Isn’t that a change in a store policy?

A:    “No, because it’s just something I’m doing myself as manager.”

Q:    How often did you look at the cleaning sheet before Mr. Smith’s fall?

A:    “Not very often because it was more for the benefit of the employees themselves, so they could remind themselves of their hourly tasks.”

Q:    You didn’t use those sheets as a tool to monitor the performance of your employees?

A:    “No.”

Q:    But you’re doing that now?

A:    “Not necessarily. I just want to make sure the system is working.”

Q:    Your answer suggests that you didn’t think the system was working at the time of Mr. Smith’s fall.

A:    “I didn’t say that. It was working fine. We took all the precautions we could, but he slipped anyway.”

Q:    Other than what you told me about checking the cleaning sheets, has anything else changed about the way the store is managed since the time of Mr. Smith’s fall?

A:    “No.”

§3:201 Practice Tip: Evidence of Subsequent Remedial Measures

Don’t assume that evidence of subsequent remedial measures such as repairs or a change in inspection practices will necessarily be inadmissible.

For example, imagine a case in which a defendant argues that it did not have prior notice of a problem. You know that after the incident, the same defendant took measures to fix the negligent condition. Some lawyers might not inquire about the subsequent remedial measures, thinking that such evidence will be automatically inadmissible. But what if the remedial measures had been ordered before the incident happened? If so, this would provide the needed evidence of prior notice.

§3:202 Discipline of Employees

When questioning employees or management about an occurrence, always ask whether any employees were disciplined afterwards. This is a “back door” way of finding out how the defendant really viewed the occurrence, and offers an opportunity to quickly learn facts that you might not otherwise stumble upon in your questioning. (These sorts of questions, of course, can also be worked into your written discovery.)

Q:    Were any store employees disciplined in connection with Mr. Smith’s fall in the store?

Q:    Were any store employees reprimanded in connection with Mr. Smith’s fall in the store?

§3:203 Conversations About the Accident or the Lawsuit

In every deposition, you should ask the witness about conversations he has had with others about the event at issue or about the lawsuit itself. In a previous section the witness was asked whether he had talked to anyone about the deposition itself (§3:143 The Witness’s Preparation for the Deposition). The questions in this section are slightly different.

What is the reason for the questions about previous conversations? They might lead you to relevant facts you did not already know and might not have found out about otherwise. If the conversations included the plaintiff, you will want to ask about the plaintiff’s statements since they might be considered admissions if offered by the other side.

Q:    Have you had any conversations with anyone other than your lawyers about this lawsuit?


If the witness answers yes, follow up by asking who was present for the conversations, when the conversation took place, and what was discussed. Although the question specifically excludes lawyers, in some circumstances the defendant’s lawyers might not represent the witness who is being deposed. In this case, the conversations with the lawyers will not be privileged, and you can ask about those conversations too.

Q:    Have you had any conversations with anyone other than your lawyers about Mr. Smith’s fall?


Again, if the witness answers yes, follow up by asking who was present for the conversations, when they took place, and what was discussed.

[§§3:204-3:209 Reserved]

8.    Defenses

§3:210 Practice Tip: Always Ask About Defenses

In planning your deposition outlines, you will naturally prepare questions that help you prove your claims for relief. However, do not stop there: be sure that you also ask questions about the defenses your opponent has raised in its answer.

One common defense is contributory negligence. Since proof of this defense is likely to come from the testimony of the defendant’s witnesses, plan to ask about it. Your questions might have the following results:

  • You will be able to pin the witness to a single set of facts about the contributory negligence, which you can proceed to pick apart later in other discovery.

  • The witness might answer affirmatively that the plaintiff did nothing wrong. If the witness is able to bind the corporate defendant, this will be a valuable admission. See §3:181 Practice Tip: Admissions.

  • The witness might not have any knowledge of facts about the issue of contributory negligence, which will also prevent the witness from testifying about the issue.

§3:211 Plaintiff’s Contributory Negligence

In the present case, the defendant has raised “contributory negligence” as a defense. The questions about contributory negligence should proceed as follows:

Q:    Did Mr. Smith contribute to causing his fall in any way?

A:    “Yes, he didn’t look where he was going.”

Q:    Is there anything else that Mr. Smith did to contribute to his fall, other than failing to look where he was going?

A:    “No.”

Q:    How do you know that Mr. Smith wasn’t looking where he was going?

A:    “It’s obvious, he fell down.”

Q:    Is there any other reason that you say that Mr. Smith wasn’t looking where he was going?

A:    “No.”

[§§3:212-3:219 Reserved]

9.    Similar Incidents

§3:220 Other Similar Incidents

As with subsequent remedial measures, there is a vast body of law on the admissibility of evidence concerning other, similar incidents at trial. See §3:221 Practice Tip: Admissibility of Other Incidents.

Ask about other incidents even though the evidence might not be admissible. If these questions turn up something that helps your case, you can spend some time later developing an argument for the admissibility of the evidence.

Finally, keep in mind that “other incidents” is something that you can cover first in your written discovery.

Q:    How long have you been the store manager?

A:    “A little over five years.”

Q:    How many people have been injured in the store in that time as a result of falls?

A:    “Other than Mr. Smith, only two others that I know of.”

Q:    Were either of those falls as a result of substances on the floor?

A:    “Yes, both were.”


If you think the existence of another incident will help you prove an aspect of your case, you will probably have a relevancy objection to overcome first, as explained in §3:221 Practice Tip: Admissibility of Other Incidents. In order to bolster your case for admissibility, find out all you can about the previous incident: how and when it occurred, why it occurred, and other facts about the incident itself. If you think you might want to investigate further, ask whether the previous incident resulted in litigation; and if so, where the case was filed, the style of the case, the names of the lawyers involved, and how the case was resolved. The answers to these questions will help you find out more about the previous incident after the deposition has ended.

§3:221 Practice Tip: Admissibility of Other Incidents

Why should you conduct discovery about other incidents? There are a variety of reasons you might want to use such evidence at trial.

For example, other incidents might demonstrate that a dangerous condition existed when this fact is in dispute (e.g., a previous fall on a faulty stair). Other incidents may also show that the defendant had notice of the dangerous condition and could have taken steps to correct it before your client was injured.

Evidence of similar incidents, accidents, and injuries is not automatically admissible. In most jurisdictions, the plaintiff will have to show that the material circumstances were substantially identical in the earlier cases. What does this mean for you during discovery? You will need to ask not only about prior incidents, but all the circumstances surrounding any previous incidents.

[§§3:222-3:229 Reserved]

10.  Closing

§3:230 Closing Questions

Sometimes, you can end a deposition by asking whether there is anything else about the occurrence that the witness would like to say. Since one of your goals is to find out the witness’s story and pin it down, it will not put you at a strategic disadvantage to ask a question like this.

A well-prepared witness will not volunteer information that you do not ask him for specifically. Even so, witnesses get tired toward the end of depositions. Some might blurt out something that you didn’t think to ask that might be important.

Ask a question like this: “I’m about finished. Before I conclude, is there anything I haven’t asked you about Mr. Smith’s fall that you think is significant?”

Sometimes, the opposing lawyer might object that the question is overbroad. Even so, he will rarely instruct the witness not to answer. Listen to the witness’s answer and follow up as necessary.

§3:231 Practice Tip: What to Do at the End of the Deposition

Before concluding the store manager’s deposition in a slip and fall case, tell the opposing lawyer that you want to take a break to review your notes. At this stage, do not feel rushed. Take your time. Go over your outline and any notes that you have taken and make sure (a) you have covered everything you planned to cover and (b) you have followed up on the witness’s answers to the questions.

Write notes to yourself about new questions you want to ask, then go back on the record and complete the deposition.

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, the St. Louis Post-Dispatch, and the Illinois 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.