Script for the beginning of each deposition

Posted Thursday, November 7th, 2013 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

There’s a routine set of questions I ask at the beginning of every deposition.  I suspect that script would be useful for new attorneys and pro se litigants.  The reasoning for each line of questioning is indented below the question(s).

• Could you please state your full name for the record?

You want to establish who is being deposed.

• You are aware you are being deposed in the case of ….?

You want to establish that the witness understands that this is a deposition and establish the case for which the deposition is being taken.

• Have you ever been deposed before?

If the witness hasn’t, the next line of questioning will help the deposition proceed more smoothly.  If the witness has, the next line of questioning can act as a useful reminder.

• In your deposition I am going to be asking you questions and you are going to be answering them under oath.  Do you understand this?

• There are a few differences between a deposition and a typical conversation that I want to make you aware of.  First, the court reporter is attempting to transcribe everything we say.  In a normal conversation folks sometimes interrupt or talk over each other but here it’s important that we wait for each other to finish asking or answering a question before the other begins talking.  Do you understand this?

• Second, since this is an oral transcription, the court reporter cannot indicate head nods or other gestures or “uh huhs” and “un nuhs.”  Thus, every answer needs to be verbal. Do you understand this?

This line of questioning is simply to make it easier on the court reporter.

• Finally, unlike a typical conversation, your answers today are under oath and this subjects you to potential criminal charges of perjury for “wilfully giv[ing] false, misleading, or incomplete testimony under oath.”  Do you understand this?

South Carolina Code § 16-9-10 makes perjury a criminal offense.  Making a witness aware of this at the beginning of the deposition helps undermine that witness if he or she later attempts to justify untruthful answers by claiming a lack of awareness of the necessity to tell the truth.

• Is there any reason, such as being under unusual stress, a physical or mental condition, or being under the influence of any substances, that would prevent or limit you today from giving truthful answers to my questions?

One doesn’t want the witness from later excusing untruthful answers based on a lack of capacity.  Asking this question limits that claim.  If the witness answers in the affirmative, it is vital to explore this issue further and determine whether to postpone the deposition until the witness is mentally able to provide truthful answers.

• There is nothing wrong with asking me to repeat a question or explain a term if you don’t understand my question.  However if you answer my question, I am going to assume that you understood it.  Do you understand this?

One doesn’t want the witness later claiming an answer was inaccurate because he or she didn’t understand the question.

• However if you need clarification of my question you need to look to me for clarification and not to anyone else.  Do you understand this?

When I first began practicing law in 1991, attorneys defending depositions would frequently interject commentary and offer suggestions regarding the questions being asked.  This was designed to influence the witness’ answers and is no longer allowable.   See Rule 30(j)(1), SCRCP.  Doing so can subject an attorney to discipline.  In the Matter of Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001).  For further information see: Ethics Opinions Every South Carolina Attorney Should Know: Part II, Improper Deposition Defense Conduct.  Asking this question reminds the witness not to look to others for clarification and reminds others in the room not to offer suggestions or clarifications.

• Sometimes, when I ask a question, you will have partial knowledge but not absolutely certain or complete knowledge.  For example, if I asked you the temperature right now you couldn’t necessarily tell me the exact degree but you could give me an approximate answer and even if you couldn’t you probably know whether its really hot or really cold or somewhere in between.  In that circumstance an answer of “I don’t know” is not appropriate but an answer giving a range or estimate based on your knowledge with an explanation that it’s a range or estimate is appropriate.  Do you understand this?

One doesn’t want a witness offering repeated answers of “I don’t know” because the witness isn’t absolutely certain.  Explaining that the witness can estimate or provide a range when that witness has some knowledge allows one to learn what the witness actually knows.  It further prevents the witness from evading disclosure of what the witness actually knows.

• Sometimes I might ask you a question in which you aren’t sure of the answer but you can reference some document and answer the question with certainty after you reference it.  For example, if I asked you the balance of your checking account on a particular date you can ask to see the banking statement before you answer it.  I can then decide whether to show you the banking statement and get an exact response or not provide it and get a less exact response.  Do you understand this?

Some questions are designed to test a witness’ memory but others are designed to confirm a factual detail.  When asking questions designed to confirm a factual detail there’s nothing wrong with allowing a witness to reference a document before answering.

• Finally, I am entitled to what are considered complete answers.  That means an answer that fully and completely answers my question.  For example if you had orange juice, toast and coffee for breakfast and I ask you what you ate for breakfast, if you answered “orange juice” that would not be a complete answer and you would not have properly answered my question.  However you are under no obligation to answer that question by telling me what you had for lunch, even if that was a more interesting meal.  Do you understand this?

Witnesses will often provide incomplete answers and then try to justify the incomplete response by claiming they didn’t understand the need to provide a full response.  Asking this question limits the ability of a witness to subsequently justify a partial response.

Going through this script at the beginning of a deposition serves numerous purposes.  It establishes the record, helps the deposition proceed more smoothly, limits the ability of others to influence the witness’ testimony, and limits the ability of the witness to subsequently justify inaccurate, untruthful or incomplete answers.