I recently became involved in a case where all the depositions had already been taken. The opposing lawyers were partners in a very large, very well-known law firm. And my predecessors on the case came from a firm with a recognizable name. The case was pending in Federal Court, so the depositions were all limited to 7 hours. While reviewing the depositions for use at trial, I marveled at the amount of time spent on things that were of no interest to the trial as well as some other quirks that struck me as pointless. So I started keeping a list, which I shared with my partner, Mark Sayre. Mark added a few of his own pet peeves, and together we created this list of 10 “Don’t Do These Things At Depositions.”
- The instruction “if you answer my question, I will presume you understand it,” is absurd and pointless. Think about it in this light—have you ever heard anyone say that before examining a witness in a trial? No? There’s a reason. No one cares what the examiner presumes. Really. No one.
- Objecting based on “assumes facts not in evidence” is really silly. Depositions occur during the discovery phase of a case when nothing is in evidence. Silly objections like this are why objections except as to form are not required to be made in a deposition.
- Objecting “lack of foundation” to foundational questions reveals ignorance about the nature of questions. “Did you call Mary Smith?” is a foundational question. A foundation question is one that assumes a fact—“what happened at the meeting?” assumes both that a meeting occurred and that the witness attended it.
- Objecting to “lack of time frame” when the word “ever” is used or implied reflects a hearing problem (get it checked) or a failure to listen. “Ever” is a time frame that no lawyer should need to have explained. It means from the dawn of history until the moment of the question.
- The objection “hearsay” doesn’t matter in a deposition. It’s called d-i-s-c-o-v-e-r-y.
- “Move to strike the answer as non-responsive” is just a time waster. There is no judge to rule on the motion and saying neither preserves it nor puts it into a queue for decision.
- Questioners who spend time asking about educational background and job history generally are wasting time, particularly when the witness is a fact witness and the facts are not about the ability of the witness to do what he or she did.
- Depositions are not memory tests. That said, asking questions like “do you remember what you said earlier in this deposition?” should invite “no” as a response. A well-prepared witness can say “not precisely—can I have my prior statement read back to me?” It wastes the examiner’s time.
- Pronouns and adjectives rarely enhance the clarity of any communication. Yet they seem to be the norm in depositions.
- Failing to establish the necessary foundation to admit documents. If you want to be able to use a document at trial, remove any doubt about its admissibility by asking the right questions.
There, I’ve stopped at ten. There are always more “lessons to be learned” but I’ll stop here.