Litigation

Those Preliminary Deposition Questions: Don't Make a Speech

By Evan Schaeffer

Because they?re impatient to get it out of the way, some lawyers turn the standard preliminary deposition questions into a speech:

Hi, I?m Bill Smith. I represent the plaintiff and I?m here to ask you some questions today. As you probably know, you?re under oath today and sworn to tell the truth. I?m here today to try to find out some basic information. If you don?t understand one of my questions, please let me know. And let me know if you want to take a break. Okay?

What?s wrong with this approach? One of the purposes of the preliminary questions is to make a record that the deponent is fully aware of the way the deposition works. This record might be important at trial if you need to use the deposition to impeach the witness. An example:

Q. You remember when I took your deposition on January 22, 2008?

Q. You remember you were sworn to tell the truth?

Q. And I told you that even though we were in an informal setting around a conference table, your testimony had the same force and effect as if we were in trial before a judge and jury?

Q. I asked you if you were prepared to answer my questions truthfully?

Q. And you answered ?yes??

. . .

Though you won?t often conduct this sort of cross-examination, you won't even have the option if you start the deposition with a muddy record. Rather than make a speech at the start of a deposition, ask questions or make statements followed by "Okay?" or "Do you understand?" This will give you short "impeachment nuggets" that you can use later, if necessary.

For more on preliminary deposition questions, see the following posts:

1.  "Those Preliminary Deposition Questions: What's Their Purpose?"
2. "How to Cross-Examine at Trial with Inconsistent Statements"
3. "Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First"

Full post as published by The Illinois Trial Practice Blog on January 22, 2008 (boomark / email).