Litigation Whiteboard® – giving the best deposition possible. Tips from the litigation trenches!
VIDEO: Click on the picture above to hear Attorney Steve explain his top 10 tips for CRUSHING your deposition and being the best witness possible. Make sure to join over 38,500 subscribers who get our free video updates by clicking on the Red “V” for Victory!
In this blog post from Attorney Steve's Litigation Warrior series, we talk about depositions and tips to give the best deposition possible. If you need representation, call us at (877) 276-5084. We help Plaintiffs, Defendants, and parties involved in arbitration and mediation. If you need more help understanding the legal process make sure to watch our “Litigation Whiteboard” series. The following is general legal information only and not legal advice.
Depositions are part of the “Discovery” process
Once a lawsuit is filed, and usually, after an answer is filed, the parties to a lawsuit (ex. the Plaintiff and Defendant) are allowed to engage in the “discovery” process. This process is designed to give litigants a chance to get evidence to support their claims and legal theories, or for the Defendant, to seek out possible affirmative defenses to the case. A deposition is therefore one of the discovery tools available to lawyers to help them evaluate witnesses and credibility which may lead to a settlement of the case, or which deposition transcripts may be used at trial.
Here is my Top 10 List to help you achieve Deposition Dominance!
These tips will help you be more confident walking into the deposition room:
- Understanding the deposition process and purpose
- Meeting with your Attorney in advance to discuss the case and review documents (if you have one)
- Bring documents (only if requested) do not offer to “go get” more documents from your car
- Dress, Appearance & Attitude (be rested and ready)
- Keep your guard up and be ready for the common Question Traps (watch the video above to learn about these!
- Request breaks as you need them in order to stay sharp (you have a right to request breaks to use the bathroom and keep your concentration)
- Be careful when “off the record” (these things may prompt further questions when you go back on the record)
- Do not promise to do anything after the deposition (unless your attorney instructs you to).
- You have the ability to correct errors and mistakes after the deposition (but its best to clarify ON THE RECORD if possible)
- Have fun, relax, and enjoy – YES YOU HEARD THAT RIGHT. You are taking part in the legal process and helping a dispute get resolved.
Watch the video posted above (click on the picture above) to hear these tips in living color!
What happens if you refuse to answer questions at a deposition?
If you refuse to answer questions that are not otherwise privileged (ex. protected by the attorney-client privilege) the other party can file a motion to compel with the Court, and if successful, can seek to have you answer certain questions that you refused to answer at a deposition. One federal court case discussed the failure to answer deposition questions which was objected to on the grounds of the first amendment:
“Pursuant to Rule 37(a)(3)(B)(i), Federal Rules of Civil Procedure, the court may order a deponent to answer questions that the deponent failed to answer during a deposition. The deponents refused to answer questions based on their First Amendment rights. An individual has First Amendment protection in his religious beliefs, as well as his religious associations.” See Guthrey v. Calif. Dep't of Corrections and Rehabilitation (E.D. Cal. 2012). A party who objects to a discovery request as an infringement of the party's First Amendment rights is, in essence, asserting a First Amendment privilege.”
See Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010). In the Ninth Circuit, “a claim of First Amendment privilege is subject to a two-part framework. The party asserting the privilege ‘must demonstrate a prima facie showing of arguable first amendment infringement. This prima facie showing requires a demonstration “that enforcement of the [discovery requests] will result in:
(1) harassment, membership withdrawal, or discouragement of new members,
(2) other consequences which objectively suggest an impact on, or “chilling” of, the members' associational rights.' (quoting Brock, 860 F.2d at 350). The existence of a prima facie case turns not on the type of information sought, but on whether disclosure of the information will have a deterrent effect on the exercise of protected activities.”
The court continued: If the party asserting the privilege makes the necessary prima facie showing, the evidentiary burden will then shift to the government to demonstrate that the information sought through the discovery is rationally related to a compelling governmental interest and the least restrictive means of obtaining the desired information.
The party seeking the discovery must show that the information sought is highly relevant to the claims or defenses in the litigation-a more demanding standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1). The request must also be carefully tailored to avoid unnecessary interference with protected activities, and the information must be otherwise unavailable. Deponents were instructed or advised to invoke their First Amendment privileges in large part based on the defense counsel's reading of the court's order on the plaintiff's first motion to compel. Yet, some of the questions that deponents refused to answer were questions that the court held were not out of bounds. In its order on the plaintiff's first motion to compel, the court stated that information known by a deponent who is or was an employee of a defendant about the organization of the FLDS church and the United Order is not protected.
These deponents refused to answer questions about the United Order. They also refused to answer questions about the organization of the FLDS church, which would include questions about church security. To the extent that defense counsel believed otherwise, they have read the court's previous order too narrowly. Deponents' invocation of a First Amendment privilege as to questions about the United Order and the organization of the FLDS church, including church security, was improper. See United States v. Town of Colorado City (D. Ariz. Mar. 27, 2014).
You have to be careful that failing to respond to lead the other party to seek monetary sanctions as well. So you can “plead the 5th” at your civil deposition, but you have to do so on a question by question basis. And the judge (upon a motion to compel of the other party) can in fact order you to answer certain questions that may not tend to incriminate you.
Changing your deposition testimony
Under California Code of Civil Procedures section 2025.520, there are two methods for reading, correcting, and signing deposition transcripts. This section reads: ARTICLE 5. Transcript or Recording [2025.510 – 2025.570]
(a) If the deposition testimony is stenographically recorded, the deposition officer shall send written notice to the deponent and to all parties attending the deposition when the original transcript of the testimony for each session of the deposition is available for reading, correcting, and signing unless the deponent and the attending parties agree on the record that the reading, correcting, and signing of the transcript of the testimony will be waived or that the reading, correcting, and signing of a transcript of the testimony will take place after the entire deposition has been concluded or at some other specific time.
(b) For 30 days following each notice under subdivision (a), unless the attending parties and the deponent agree on the record or otherwise in writing to a longer or shorter time period, the deponent may change the form or the substance of the answer to a question and may either approve the transcript of the deposition by signing it or refuse to approve the transcript by not signing it.
(c) Alternatively, within this same period, the deponent may change the form or the substance of the answer to any question and may approve or refuse to approve the transcript by means of a letter to the deposition officer signed by the deponent which is mailed by certified or registered mail with return receipt requested. A copy of that letter shall be sent by first-class mail to all parties attending the deposition.
(d) For good cause shown, the court may shorten the 30-day period for making changes, approving, or refusing to approve the transcript.
(e) The deposition officer shall indicate on the original of the transcript, if the deponent has not already done so at the office of the deposition officer, any action taken by the deponent and indicate on the original of the transcript, the deponent's approval of, or failure or refusal to approve, the transcript. The deposition officer shall also notify in writing the parties attending the deposition of any changes which the deponent timely made in person.
(f) If the deponent fails or refuses to approve the transcript within the allotted period, the deposition shall be given the same effect as though it had been approved, subject to any changes timely made by the deponent.
(g) Notwithstanding subdivision (f), on a seasonable motion to suppress the deposition, accompanied by a meet and confer declaration under Section 2016.040, the court may determine that the reasons are given for the failure or refusal to approve the transcript require rejection of the deposition in whole or in part.
(h) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to suppress a deposition under this section, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
Thus, after deposition the witness has two options:
OPTION ONE: At the conclusion of a deposition in California, the deposition officer shall send written notice to the deponent and to all parties attending the deposition when the written transcript is available for reading, correcting, and signing. The witness has 30 days following the notice that the deposition is ready for reading, correcting, and signing, or a longer or shorter period if the parties agree in writing or on the record. The original will remain at the court reporter's office available for the read/sign.
Some witnesses may complain about having to go to the Court Reporter's Office to change deposition testimony. Thus, there was an alternative later added to the code:
OPTION TWO: CCP 2025.520(c): Alternatively, within this same period, the deponent may change the form or the substance of the answer to any question and may approve or refuse to approve the transcript by means of a letter to the deposition officer signed by the deponent which is mailed by certified or registered mail with return receipt requested. A copy of that letter shall be sent by first-class mail to all parties attending the deposition.
This alternative language allows the witness to purchase a Certified Copy and then write out any corrections on an errata sheet or in a letter format.
So there is always a way to get a copy of the depo transcript and make any needed changes to the testimony.
How to SET a Deposition - General Tips (check your local rules)
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Advanced deposition tips
Here are some more things that can pop up in a deposition and some potential ways to handle them.
- Make sure to enter the deposition notice into the record
- If you are questioning a PMQ, go over the categories in advance and ask them if they are the person most qualified on each of the topics. If not, they need to proffer the names of the proper person. This can help with the questioning. If you have a fake PMQ, you may want to raise that issue on the record and state that if you plan to seek sanctions for producing a non-responsive witness.
- What is a corporation has too many witnesses at a deposition (either parties, officers, directors, or non-parties trying to sit in on the deposition)? Look up the rules; they may be limited to the parties who may observe the deposition, especially if any of them may be fact witnesses in the case). Move to shut down the deposition if these unentitled persons will not leave or drop off the zoom call.
- If a witness responds to your question with filibuster, non-responsiveness, or examples that waste time and do not answer the questions at issue, move to strike as non-responsive and ask the witness to answer the question. This is the evasive witness.
- If your opposing counsel makes long-winded objections (sometimes called speaking objections), which tend to waste time and can result in “coaching the witness” object to that. One time I had to label it the “filibuster speaking objection” and I counted up all the time wasted by the belligerent opposing counsel and asked to reopen the deposition due to all the wasted time (abuse of discovery process).
- If a witness is taking notes during the deposition, ask for their notes at the end. Seek to have this submitted as an exhibit to the deposition.
- Make sure to ask the witness (if they appear to be looking at a screen) if they have any means to communicate with their lawyer. If so, to please turn that off (ex., chat application).
- If you are having a problem with the witness answering a question – repeated “I don't know” or “I don't recall” ask them what they did to prepare for their deposition and what reasonable search or investigation they undertook to find relevant evidence or documents under their custody, possession, or control to prepare for their deposition.
- Many cases involve electronically stored information. If so, ask the witness about all devices (a) they use now, and (b) have used in the past several years. Get makes and models, as you may need to conduct a relevant forensic examination.
- When you constantly get the objection “the document speaks for itself,” ask the witness what their understanding of the meaning of the document was.
Deposition Hall of Shame VIDEOS – [Warning – some of these are very funny]!
Here are some videos I had to link to. This should give you a feel for how depositions can play out in real life, and some funny clips. Giving a deposition is not the end of the world, accept it for what it is, enjoy it, and conquer it!
- Best deposition question and answer
- Litigants losing composure
- Old school lawyers almost go to gloves
- How using “I don't recall” can lose credibility
- Great example of witness waiting for the question while attorneys haggle
Contact a California litigation attorney (IP, entertainment and media cases)
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