Preparing to Take a Deposition

Depositions are a part of the discovery phase of litigation during which an individual is asked questions under oath and their testimony is recorded in a transcript.  Sometimes, these are called examinations before trial, and they can be useful in preserving someone’s testimony, determining what witnesses will say at trial, and to support or oppose motions that might be filed during a case.  Depositions can sometimes be stressful, but if litigants and attorneys keep a few things in mind, preparing to take a deposition can be easier.

Notice

The first thing that is important to do when preparing to take a deposition is to serve a deposition notice.  A deposition notice tells the parties when and where a deposition will take place.  Normally, a deposition notice needs to be served a set amount of time before a deposition is scheduled to occur, normally twenty to thirty days in advance of a deposition.  In addition, if a deposition of a corporate party is noticed, the examiner may be able to designate a representative to sit for the deposition, but the corporate party may be able to designate someone to represent it at the deposition.  An experienced litigation attorney should know the mechanics of providing an accurate deposition notice and designating a deponent if this is permissible in a given situation.

Create an Outline

One of the easiest ways to go about preparing to take a deposition is to prepare an outline.  Some attorneys and litigants can go into a deposition with just a few notes about general topics that they wish to cover during a deposition.  However, to ensure that a lawyer covers all relevant topics at a deposition, they should have a written outline detailing all of the questions asked.

The best way to prepare an outline is to first determine the topic that the examiner wishes to ask at the deposition.  Then, for each of the topics, the examiner should write down the questions they want to ask at a deposition.  Of course, the examiner does not need to write down all of the followup questions related to an inquiry but writing down the general questions is important.  In addition, the examiner should also write alternate questions that depend on the answers provided by a witness at a deposition.  It is helpful if the examiner goes over this outline multiple times to ensure that all areas of inquiry are covered and the examiner does not leave anything out from the deposition.

Prepare Exhibits

Another important part of preparing to take a deposition is preparing exhibits.  Exhibits are documents or other materials that are introduced at depositions to be consulted by the witness.  Exhibits can be documents that have been produced during discovery or other materials such as things written by a party, contracts at issue in a case, and other materials.

There are a variety of reasons why exhibits are important to depositions. Firstly, exhibits can be important to refreshing the recollection of a witness.  Events in litigation may have occurred months or even years in the past.  It may be difficult for witnesses to remember everything that they said and did in the past.  However, if a witness is shown a document that they created or otherwise refreshes their recollection, it can be easier for them to answer questions at a deposition.  In addition, exhibits might be important since examiners may have questions about an exhibit that they need a witness to clarify.  Furthermore, sometimes witnesses doge questions but this is more difficult if they are confronted with information in the form of an exhibit. Usually, especially if depositions are occurring by Zoom, examiners need to prepare and mark exhibits before a deposition occurs, so it is important to be prepared with exhibits when conducting a deposition.

Followup

It is important to know when preparing to take a deposition that preserving a witness’s testimony at a deposition is not over after the party is examined at a deposition since there are several steps that occur after a deposition.  In many jurisdictions, parties can file an errata sheet if someone disagrees with how a court reporter recorded testimony.  Normally errata sheets need to be returned within a given period of time, and different jurisdictions have different rules governing the impact of errata sheets.  As a result, it is important to review the rules of your jurisdiction to ensure that you timely submit an errata sheet if this is needed.

After a deposition in some jurisdictions, the examining party needs to obtain a copy of the deposition transcript.  They then need to serve a copy of the transcript on the other side so that the transcript can be reviewed and signed before a notary.  If the deposition transcript is not signed before a notary before a certain amount of time, the deposition transcript will still have the effect of being sworn to under oath.  It is important to follow this step if it is needed so that deposition transcripts can be used for all allowable reasons in litigation.

The Rothman Law Firm is experienced in preparing to take a deposition and defending depositions.  If you are looking for an experienced New York and New Jersey litigation lawyer to handle your deposition or other legal issue, please feel free to contact The Rothman Law Firm to request a free consultation.