“Preparing for a deposition starts long before the deposition itself,” stated Sharon Stiller, partner at Jaeckle, Fleischmann & Mugel. “Figure out the theme of your case and what facts you need to bring out in the deposition. Also prepare a deposition notebook so you have relevant case and statutory authority readily available.”

She went on to discuss the need to prepare for how you will interact with the witness. What if the witness continuously responds “I don't recall” ? How do you deal with a sympathetic witness? Or a witness that is overly emotional?

“You need to prepare yourself for a variety of possible situations so you can get useful answers to your questions,” she noted.

Preparing Your Witness

In discussing how to prepare you own witness for a deposition, Debra Martin, of Martin & Iati suggested sending a letter to the witness describing what the purpose of the deposition is, what they should wear, who will likely be there and how long the deposition might take.

“Ideally, you schedule the deposition at your own office so the you and the witness are both comfortable,” Martin said.

For a witness that seems anxious about the process, it may make sense to do some role playing to prepare the witness.

“You may want to practice asking questions the opposing counsel may present so the witness knows what to expect,” she added.

Stiller and Martin both emphasized the importance of explaining the rules of deposition taking to the witness so he or she understands this is part of the discovery process and any written documents used in preparation may be fair game for opposing counsel to see.

“It is in people's nature to want to be liked, so be sure your witness understands that telling the truth is more important than being liked,” noted Melanie Sarkis of Harris Beach. “Tell them to listen carefully to the question and answer without going off onto tangents.”

“And be sure the witness knows not to joke around or be sarcastic,” added Stiller. “When the deposition is reduced to a black and white transcript of what was said, there will be no opportunity to explain tone or facial expressions that might explain tone.”

And witnesses should also be cautioned about stating speed, time or distance in exact terms.

“Mathematical formulas can be used to calculate speed if time and distance are given in definitive terms,” Martin stated. “The witness can paint himself in a corner by attempting to be too precise.”

At The Deposition

“Don't let opposing counsel take charge just because you are less experienced,” cautioned Stiller. “Don't give up your right to conduct the deposition in the sequence you planned.”

Another mistake some less experienced attorneys might make is allowing a family member to translate or interpret where there is a language barrier. Only official interpreters should be used.

Noting that case law supports various scenarios including whether or not to allow a baby to be in the room, or having extraneous people on hand, the CLE presenters also discussed the importance of listening to not only what is said, but what is not said.

What about a witness who is disrespectful? Or a witness who is hostile?

“Again keeping the transcript in mind, you may want to ask that the record reflect that the witness has snickered, or gestured as part of their response,” Stiller noted.

Stipulations And Other Matters

The CLE program also discussed who pays for the transcript and waiver of the reading and signing of the transcript. It is important to know in advance what is meant by the “Rochester Rule” in regard to stipulations.