5.5 Preparation for Depositions

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

5.5 PREPARATION FOR DEPOSITIONS

5.501 In General. Successful depositions are the result of preparation, careful and precise construction of questions, and attentive listening skills. Appendices 5-3 and 5-4 provide checklists of suggested preparatory activities to help begin the process. Before commencing a deposition, have a plan. What information do you hope to learn during this deposition? Can you get the witness to commit to the existence and truthfulness of a specific fact or the absence of a fact the witness should know? Of course, the testimony given may throw the plan off, but start with a plan. Always keep in mind the distinction between the discovery deposition of a party that may be used for any purposes, such as substantive evidence under Rule 4:7(A)(3), and the deposition of a witness that cannot be used as substantive evidence unless the witness becomes "unavailable to testify at trial."

5.502 Review of Case Law, Jury Instructions, and Statutes. The starting point for preparing for a deposition is a review of the case law, jury instructions, and statutes that are relevant to the client's cause of action or defenses. It is critical to know what essential elements must be proved of the claim and the defenses. The case law, local and national, can provide factual circumstances that will enable the examiner to frame questions to bring the client's case within that case law or to establish facts to distinguish your case from a particular line of reasoning. For example, case law on the independent contractor defense provides not only the analytical and legal framework to prove (or disprove) a claim of respondeat superior, the cases also provide a wealth of factual scenarios that are an excellent source of potential questions. The...