1. Civil Litigation:
Process and Procedures
Chapter Fourteen
Depositions

2. A Unique Form of Discovery
 An opportunity to ask questions of
parties OR witnesses (lay or expert)
 May choose to observe the way a
witness or party answers
 Demeanor
 Level of comfort
 “Jury appeal”
 Evaluate the presentations of both sides
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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3. Paralegal Duties
 Schedule depositions
 Calendar for all attorneys
 Subpoena witnesses
 Notify parties
 Schedule a court reporter
 Reserve a location
 Attend & take notes (noting demeanor,
body language of both sides)
 Prepare a digest of the deposition
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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4. Other Paralegal Duties
 Listen, observe, take notes
 Be sure
 Proper notice has gone out
 Client, witnesses, attorney & court reporter
know how to get there
 Be there early to
 Review set-up (where are the restrooms?)
 Greet clients & witnesses
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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5. Types of Depositions
 Depositions before filing a complaint
 Limited circumstances, by motion
 Obtain information necessary to preparing a
complaint
 Deposition on Written Questions
 Questions are prepared in advance, posed by the
court reporter
 Limited use, usually when travel is a hardship
 Doesn’t require attorneys to be present
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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6. Oral Deposition
 Attended by the parties, lawyers, witness, court
reporter
 Witness is asked questions by an attorney under
oath
 Response is similar to a trial situation response
 Objections can be made for the record
 Must give reason
 Witness will answer, subject to a judge later sustaining
the objection
 Paralegal notes responses, inconsistencies
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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7. Videotaped Depositions
 Oral deposition, recorded as a video,
rather than written, transcript
 May be done in anticipation of a witness
becoming unavailable to testify at trial
 Physical illness or disability
 Travel limitations
 Experts with scheduling difficulties, cost
factor of personal appearance in court
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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8. Video Guidelines
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9. Uses of Depositions
 Opportunity to hear the other side’s version of
the events
 Evaluate the effectiveness of witnesses
 Exposes the client to a more hostile form of
questioning, similar to cross-examination
 Preserves testimony in case the witness
becomes unable to testify
 Even if oral, not videotaped
 Unforeseen difficulty
 As long as both sides had the opportunity to ask questions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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10. Impeachment
 If the deposition differs
 From previous material given under oath
(interrogatories, affidavits)
 From testimony in court
 Raises doubts about the
 Truthfulness of the witness
 The accuracy of the witness’s recall
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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11. Notice
 Notice of Deposition adequate for parties,
counsel, court reporting service to attend
 Subpoenas required for witnesses
 Duces tecum, if documents are required
 A court order, subject to penalties for contempt of
court
 Served by the same means as a complaint
 Adult to adult
 Residence or usual place of business
 May require a witness fee
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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12. Court Reporter
 Notified by Notice of Deposition
 May conduct the deposition on written
questions without attorneys present
 Will administer the oath
 Needs
 Date, time, location
 To know the type of equipment required
 A fee
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All Rights Reserved.
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13. Preparation
 Review the file
 Review with the client
 Prior statements
 Reports
 Police
 Accident
 Insurance
 Investigators
 Medical personnel
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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14. Questions
 Discuss the types of questions
 Open-ended, narrative
 Closed-ended
 Leading
 Discuss objections
 May choose to practice
 If client is unusually shy or apprehensive
 To prepare for the rougher questions of an
adversary
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15. Deposition Advice
Dress appropriately Be on time
Don’t talk over anyone – court If you respond, it is assumed you
reporters can only follow one understood the question and are
speaker at a time responding to it
Listen to the question If you don’t understand a question,
ask for it to be rephrased
Don’t guess If you don’t know an answer, say “I
don’t know.”
Don’t argue Tell the truth
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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16. Deposition Scope
 Permits questions asked of the other
side’s witnesses, even if they have been
hostile to previous efforts
 Can seek information that would be
objectionable at trial, if it can be shown to
possibly lead to admissible evidence
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All Rights Reserved.
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17. Deposition Digest
 Will aid in trial (potential impeachment)
 Should be prepared while still fresh in the mind
 Integrate notes & mark transcript (or video
location by footage) for important concepts
 Electronic transcripts are more easily searched
& coded
 Include background information on the
witnesses (a computer search may help)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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18. Digest
Sample
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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19. The “Usual Stipulations”
 Will frequently include a waiver of the right
to review & correct
 If the usual stipulations are not adopted
 The transcript should be reviewed with the
witness
 The witness should suggest corrections, if
necessary
 The witness should sign the transcript with the
corrections made
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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