Monday, May 28, 2012


Five Common Mistakes to Avoid During Deposition


Daniel E. Cummins

Pennsylvania Law Weekly 5/22/2012

It has been said that cases are won or lost at the deposition stage of the civil litigation process. The deposition represents the one pretrial opportunity to assess the opposing party's demeanor as well as its entire case on a face-to-face basis. Accordingly, the importance of the deposition cannot be emphasized enough.

Yet, given that the deposition is such a routine event in a civil litigator's daily practice, the danger exists for dropping one's guard, not fully honoring the importance of the deposition and running through the deposition in a robotic recitation of standard, common deposition questions.

Below are five common deposition mistakes that all attorneys may face at one time or another in their practice. Recognizing the potential for making these mistakes at a deposition may assist in avoiding their recurrence in the future.

Failing to Fully Prepare

A day or two prior to the scheduled deposition, every piece of paper in the file should be mined for information to cover during the deposition. With the many files attorneys handle on a day-to-day basis, it cannot be expected that an attorney will recall all the important aspects of any given file without reviewing the file. Furthermore, the seemingly not-so-important aspects of the file, hidden in the deep reaches of the file, may prove to be a game-changer later in the litigation.

One way to help an attorney secure an overview of the file prior to diving into the entire file in preparation for a deposition is to create a folder of all of your summary letters and memos to the file. Having all of those memos and summary letters in one folder for a quick initial review may help speed up the preparation process and avoid the aggravation of being unable to locate particular information.

In terms of being prepared to complete a deposition it is also wise to have an outline or even a set of standard questions in writing to bring with you to every deposition. Such writing will help to ensure you cover all of the important issues. While preparing for each deposition, this form can also be used to write notes from your review of the file, covering particular issues and questions to address.

The danger to avoid when using this type of form is the act of simply spitting out standard questions by rote. The key of every deposition is to actively listen to the deponent's answers and to ask follow-up questions in response to the answers in an effort to gather all available information from the witness at this one-time opportunity to complete a deposition.

The client deserves an attorney who is fully prepared to question the other side. Continually reminding yourself that, as an attorney at law, you are professionally representing another person's all-important interests and are serving as the mouthpiece of that person at the deposition may help one to avoid the mistake of not fully preparing for each and every deposition.

Breezing Over Preliminary Matters

The regularity of depositions in one's practice may also lull one into breezing over the preliminary matters that are typically reviewed at the commencement of each deposition. It should be initially confirmed on the record whether or not the depositions are proceeding by way of the "usual stipulations." Those usual stipulations typically cover the fact that all objections except those as to the form of the question are reserved for trial and that the witness is waiving the reading and signing of the deposition.

The better practice may be to not only put on the record that the usual stipulations are in place but to also actually and specifically state on the record that all objections are preserved for trial except for those objections to the form of a question. That way, there can be no question at trial whether or not an attorney preserved the right to state other objections at a later time.

Another preliminary matter sometimes overlooked at depositions is the simple act of securing the witness' basic information at the start of the deposition. Some attorneys will go into the preliminary instructions for depositions and then forget to even ask the witness his or her name, address, etc.

Accordingly, once the usual stipulations are confirmed on the record, it is best to have a practice to start with the name, address, date of birth and Social Security number of the witness even before going into the deposition instructions. Make this the first thing you do at every deposition so you don't ever forget to secure this information at the outset.

A benefit of adopting this practice is that you will know that, whenever you open a deposition transcript of any witness you deposed, that witness' basic information will be right there on the opening pages of the transcript. This will save you the time of otherwise having to scrounge through the entire transcript for an address, date of birth or Social Security number if needed.

Attorneys also sometimes develop a habit of breezing over the instructions, or ground rules, to a deposition. At the very least, the witness should be politely instructed to ask the attorney to repeat or rephrase any question that the witness did not hear or understand. It should be clearly stated on the record at the commencement of the deposition that the burden is on the witness to state, during the deposition, that he or she did not hear or understand a question. This practice will render less credible a deponent's backpedaling statements during impeachment at trial that they did not fully hear or understand the question at trial.

Remembering to fully cover the other standard instructions will also help the depositions to go quicker and smoother. Deponents should be politely requested to verbalize all of their responses, avoid "uh-huh" and "mm-hmm" and to allow the attorney to complete the question before beginning to answer. To avoid long pauses, the witness can be instructed that if he or she does not know the answer to a question, or cannot remember, it is acceptable to simply say so.

Also, to avoid any later claim by the witness that he or she was fatigued when responding to questions, it should be stated during the introductory instructions that the deponent may request a break at any time. Some attorneys also state their preference that, if a break is requested after a question is presented, the question be answered before the break is taken.

Last, but certainly not least, the witness should also be required to acknowledge on the record that he or she understands that he or she is under oath to tell the truth and that it is his or her intention to do so. In this regard, it should also be confirmed that the witness is aware that, should he or she testify differently at trial, his or her deposition transcript could be utilized to show the differences in his or her testimony.

Succumbing to Opposing Counsel's Tactics

Another mistake to avoid at depositions is allowing opposing counsel's antics and tactics to have an impact on how you conduct and complete your deposition.

One subtle, and perhaps unplanned, tactic of opposing counsel is the appearance of seeming extremely bored with the whole proceeding. Out of courtesy to a friendly opposing counsel, the deposing attorney may feel compelled to move matters along and get the deposition done. Such feelings can be dispelled by reminding oneself that the duty to the client demands that all information that can possibly be gathered at the deposition be secured.

The opposite of the bored opposing counsel is the boorish opposing counsel. These churlish opposing attorneys sit on the edge of their seats at depositions ready to pounce with an objection at every opportunity, even though the usual stipulations are in place. Even worse, they often utilize speaking objections in a loud, ornery, oafish manner.

These antics are best ignored. Do not engage the opposing counsel — that is all he or she wants in order to throw you off your track. Similar to a petulant child's tantrum, the less these antics are acknowledged, the less they will escalate or continue.

The better tactic is to direct your focus on the witness, ignore the opposing attorney and await an answer to the question presented. If there is no answer forthcoming, ask the question politely again. If the witness is instructed by the opposing attorney not to answer the question, simply state that you reserve the right to file a motion with the court and redepose the witness on the question presented. Then simply move ahead with your deposition.

If the opposing attorney continues with repeated questions, continue with the same process above. If the deposition is being totally sabotaged by a bullying opposing counsel, a phone call to the court may be required to get things back on track. Usually, the threat to call the court calms things down and gets them moving ahead again.

Simply put, you are there to depose the witness and gather information from that witness. Focus your attention on the witness and ignore the opposing counsel.

Forgetting to Cover Social Media

There is no question that, with the explosion of social media, a portion of a deposition of a plaintiff or a defendant should be dedicated to inquiring as to the witness' online presence and whether there has been any mention of the subject accident or issue in question on any of the deponent's social media sites.

Typically, prior to the deposition, the opposing party will have already stated an objection to any written discovery requests for social media access information (username and password). At least one Pennsylvania trial court decision has indicated that before a party can have such an objection overruled, the court must be convinced there is relevant information to be garnered from such discovery.

Accordingly, at the very least, deposition questions on this topic should confirm that the witness does indeed have an online presence (Facebook, Myspace, Twitter, etc.) that the witness has added to or deleted from since the subject accident or incident. In this way, a foundation can be laid for the filing of a motion to strike the opposing party's objection and compel the discovery desired.

Obviously, if the witness concedes that he or she has an online presence, and that he or she has added to or deleted from that presence, follow-up questions should be presented for more specific information in that regard. While the username and password necessary for entry into the deponent's site may be initially objectionable under privacy concerns, general questions as to the content of the site will usually be allowed by opposing counsel as obviously relevant to the claims presented.

Forgetting to Go Over Pleadings and Discovery Responses

Perhaps a good way to end every deposition, so you do not ever forget to do so, is to pull out the opposing party's pleadings and discovery responses and go over any issues or unanswered questions raised therein.

With the pleadings, a party may have raised some factual issues that should be explored. The pleadings may also contain exaggerated statements verified by the opposing party to be true and correct to the best of his or her knowledge. Confirming those exaggerated statements as being true and correct according to the opposing party may serve as fodder for cross-examination at trial.

In terms of the opposing party's discovery responses, there are sure to be a number of interrogatories or requests for production of documents and things that were objected to or given a pat response. At the deposition, the witness could be pressed on these issues for a response, or a more complete response.

In the event the discovery objections are restated during the deposition, the questioning attorney will at least learn the stated parameters of that objection and that a motion to compel may be necessary prior to trial to remove the objection.

Again, it is important to remember that the deposition is the one and only opportunity for a pretrial face-to-face inquisition of the opposing party and the opposing party's case. By going over objected to and unanswered written discovery requests, the questioning attorney may gather nuggets of golden information to advance the client's case at trial. 

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at

This article originally appeared in the May 22, 2012 edition of the Pennsylvania Law Weekly and is republished here with permission from ALM Media (C).

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