August 01, 2019

Paul Mark Sandler on Witness Deposition Prep

An installment from Paul Mark Sandler's monthly column on trial advocacy for The Daily Record:

Success in trial often depends on deposition preparation. Here are some guidelines to stay within the bounds of ethics and propriety.

First, prepare yourself. Read the Rules of Civil Procedure, both state and federal, that relate to discovery, including depositions. Also read the MSBA’s Discovery Guidelines (Chapter 400, Md. Rules) and the Discovery Guidelines of the U.S. District Court (Appendix A, Md. Rules). Review the ethical rules relating to preparation of witnesses (Rules of Professional Conduct, Title 19).

Understand that the scope of the attorney-client privilege and work product doctrine is applicable to depositions. The attorney-client privilege does not apply to conferences with third-party witnesses, so be prepared for questions relating to the meetings you had preparing witnesses other than your client.

Be sure you know the theory, evidence and essentials to prove or defend your case, and know as much as possible about your witnesses before each meeting.

Second, prepare your client and witnesses. Begin by explaining that a deposition is a procedure where a witness is questioned by various lawyers who represent parties in a lawsuit about facts pertaining to issues in the case, or about information that is relevant to the subject matter involved in the action, whether it relates to the claim or the defense of the party seeking discovery or to the claim or defense of any other party.

Further, explain that these answers become deposition testimony and are recorded under an oath administered by the court reporter. Witnesses will be asked to affirm that their testimony is true under the penalties of perjury and it will become part of the deposition transcript.

A deposition allows lawyers to assess character and credibility and to learn the extent of a witness’s personal knowledge of facts relevant to the case, as well as the nature of what the testimony will be in the event a witness is called at trial.

Other purposes of the deposition include:

  • “Freezing” testimony, so that if witnesses change their testimony during trial they can be impeached;
  • Preserving testimony in the event a witness is unavailable for trial;
  • Neutralizing a potentially harmful witness;
  • Obtaining helpful information to support the case of the party who is taking the deposition; and
  • Evaluating strengths and weaknesses of a case for settlement.

It may also be helpful to explain the potential uses of a deposition. Testimony can be read to the judge or jury for any purpose, of a party to the lawsuit as distinguished from a nonparty witness. Portions can be read to the judge or jury subject to the rules of evidence, if a witness as distinguished from a party becomes unavailable or is beyond the jurisdiction of the court during the trial. Portions of a deposition can also be read to attack credibility by demonstrating that trial testimony differs from deposition testimony.

Tell your witnesses they have the right to — and should — read their deposition transcript before signing it. They may make corrections to their testimony; however, doing so allows opposing counsel to re-depose.

Also offer your witnesses the following pointers:

  • Dress appropriately. Counsel will be assessing credibility, character and demeanor.
  • Always tell the truth. Not only is there a moral and legal obligation to respond truthfully, but also it prevents opposing counsel from attacking witnesses’ credibility at trial.
  • Listen carefully to all questions. Ask for clarification if necessary. Tell witnesses that if a question is vague but they feel they can answer it, they should first state how they understand the question before giving an answer.
  • Pause and reflect before answering. This not only allows time for witnesses to gather their thoughts, but it also enables you to interpose an objection, if you so desire. Explain the two types of objections at deposition: form and substance. An objection to form is a technical one.  An objection to substance is based upon what you believe is an improper question. Tell witnesses you will instruct them on how to proceed.
  • Respond to questions based on knowledge. Tell witnesses never to guess or speculate.
  • Do not accept characterizations or summaries unless they are accurate. Frequently, opposing counsel will attempt to summarize what has previously been stated, or the content of a document, and such summaries can be flawed with inaccuracies.
  • Answer all questions in a straightforward manner. Urge witnesses to avoid speeches and repetition of the facts contained in the question.
  • Listen carefully throughout the deposition. Explain that you, the lawyer, play the lead role during the deposition and that discussions during the proceeding are discouraged because they may convey disagreements, misunderstandings or questions to opposing counsel.
  • Do not respond to questions about documents unless familiar with the content of the entire document. Tell witnesses not to hesitate to ask that a document be shown to them if it would be of assistance in answering a question.
  • Maintain a calm business demeanor. Extensive off-the-record discussion and casual conversation should be avoided. Further, explain that discussing prior testimony during the deposition or a recess is prohibited unless the subject matter relates to whether the answer will waive a privilege, such as attorney-client privilege.

These brief remarks scratch the surface but, I hope, will spur you to study in depth the many aspects of depositions, including Q&A practice sessions, when appropriate, the deposition of expert witnesses and corporate designees — topics for another day.

Paul Mark Sandler, trial lawyer and author, can be reached at