How to

• Publication year: 1994
• Pages: 15
• Citation: Vol. 7 No. 5 Pg. 15

How To Vol. 7 No. 5 Pg. 15 Utah Bar Journal May, 1994

Utah Deposition Primer - Part II

David K. Jsom, J.

II. TAKING AND DEFENDING THE

DEPOSITION

A. Preparing the Witness

To prepare a witness to be deposed, you should orient the witness to the deposition setting and process, define the goals you and the witness hope to achieve in the deposition, and emphasize the need to tell the truth.

Perhaps because of the current ill repute of lawyers generally, almost every witness wonders if her lawyer will encourage her to lie. Witnesses must be told to tell the truth. Moral reasons aside, there are strong legal and strategic reasons for truthfulness. The most obvious legal reason is that lying in a deposition is perjury, a felony.^[1] The most compelling strategic incentive for truth is that a witness can seldom succeed in the lie. With the powerful discovery and investigative tools available, and the near total certainty that the facts are reflected in papers, bank accounts, credit records, and computer and other electronic data, a case built on lies is rarely successful.

How much the witness should prepare for the deposition is an important strategic decision. Witnesses other than experts^[2] and those designated under Rule 30(b)(6) have no duty to conduct investigations, review documents, or learn additional information for a deposition. However, given the reality that a deposition is normally your best opportunity to show strength before settlement, summary judgment or trial, your witness can rarely afford to be coy. Finally, beware of Evidence Rule 612. There is a substantial risk that the attorney-client privilege and other privileges may be waived if a witness reviews privileged documents to refresh recollection in preparing for the deposition.^[3]

B. Defining Your Purpose

Effective examination techniques depend entirely upon the goals you hope to achieve by taking a deposition. Only by considering your objectives can you decide whether and how a deposition should be taken.

The purpose of most depositions is to learn facts and opinions and to observe the witness's attitude and appearance. The witness will be more likely to remember and reveal facts if she feels comfortable. Courtesies such as introducing yourself, the stenographer and other persons present, and explaining the deposition procedure, will help. Witnesses who know generally what the case is about will have a theory about who should win and why. You should try to discover these theories and the facts which support and contradict the theories. To do this, you should ask open-ended questions to which you do not know the answer and then follow the witness into the newly revealed areas as the examination proceeds.

Questions that are objectionable at trial may be proper in a deposition. For example, a question which arguably calls for speculation may uncover information which will be admissible. Also, questions about how the witness feels or what the witness thinks which may be inadmissible at trial may lead to admissible evidence and may be helpful to evaluate settlement.

Although lawyers commonly distinguish "discovery" depositions from "trial" depositions, there is no such distinction in the rules. Keep in mind that, even if your sole purpose is discovery, the deposition transcript may be admissible at trial under Rule 32. Rambling responses to open-ended questions may come back to haunt you.^[4] If your sole goal is to create a transcript which will be admitted into evidence at trial to persuade the factfinder, open-ended questions are treacherous. Creating such a transcript requires you to know, to the extent possible, the answer to each question before you ask it, just as if you were at trial. In a deposition, however, you can take the time necessary after each answer to construct a focused, persuasive question, since the transcript does not show how much time has elapsed between questions.

Finally, be sensitive to every verbal and non-verbal clue. A witness's failure to answer exactly the question put, or request to consult with counsel before answering, often signals that you are onto something important. If a witness talks to someone other than her attorney during a break, ask her about the conversation. Train yourself to watch the witness' eyes and body for signs of discomfort with the pending question or answer. Watch for clues that the witness wants to say more.

C. Who May Attend

The public and media may be excluded from depositions under some circumstances.^[5] In Seattle Times Co. v. Rinehart,^[6] the United States Supreme Court held that the public and media have limited First Amendment interests in depositions, which can be overridden by a party's countervailing privacy and fair trial interests.

The court may exclude persons from a deposition either under Rule 26(c)(5) or under Evidence Rule 615.^[7] Rule 26(c)(5) is broader than Evidence Rule 615 in that it authorizes exclusion of anyone, including parties.^[8] Evidence Rule 615 only authorizes the exclusion of certain potential witnesses; it "does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or...