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Depositions Part One: The Importance of Deposition Admonitions Part 2

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Milanfar_ShahradThis post is written by guest blogger: Shahrad Milanfar.

In Part One of this blog post, we discussed the importance of properly administering the deposition admonitions. Here I will discuss the specific admonitions we should give to make sure that the integrity of the process and your clients’ interests are protected.

1. Full Name

This is important because it allows the witness to start with an easy question and provide you with a piece of information which you have but may not know how to pronounce.

2. Prior depositions and trial testimony

After asking the witness to state his/her name and date of birth, I ask them whether or not they have ever given testimony in any other cases. I specifically ask about deposition and trial testimony. This gives me an idea of how experienced the witness is in testifying. More importantly, it provides me information about other cases the witness may have been involved in previously. This is also a good lead-in for the actual admonitions themselves.

3. The oath

Most lawyers start off by telling the witness,”Mr./Ms. ______, you just took an oath. This is the same oath you take in a Court of Law. Therefore, if you don’t tell the truth or change your answers, I can call your credibility into question.” Translation: if you change your answer I will accuse you of perjury. The question I have for you is, when was the last time you opened a conversation with someone by threatening them, and gotten a good response? The approach I just detailed only heightens the witness’ anxiety and forces them to keep their guard up, which is the exact opposite of what you want. Here is an alternative, which I find is much more effective:

“Mr. / Ms. ____, you just took an oath to tell the truth. This is the same oath you take if you were sitting in Court with a judge and/or jury. I’m not telling you that to make you more nervous or intimidate you. I’m telling you that because it is very important that you understand the questions I’m asking you before you answer those question. Because if you answer a question you don’t understand, I’m going to believe that you did understand it and move forward with inaccurate or false information. Later on you may want to make a substantive change to your answer, which would cause me, or someone on my team, to question your answers. I want you to know that I am perfectly capable of asking bad questions. There is no reason to be shy if you don’t understand my question. So, If you don’t understand my question, please let me know so I can fix it. Also, if you realize during the deposition that you need to clarify an answer, just let me know. Okay?”

This approach takes the pressure off of the witness and allows the witness to be open, honest, and less nervous when answering the questions. It allows the witness the freedom to let you know that a question is not clear. But once that witness answers the question, s/he will have a much harder time changing it at trial because the admonition has your cross-examination built in, to allow you to deal with substantive changes.

4. The transcript

You should also point out that the court reporter is taking down everything which is being said during the deposition. It is important to provide audible responses like Yes or No and to make sure only one person is speaking at a time. This will provide a clear and usable record for use down the road. Let the witness know that at some point during the deposition s/he will say “Uhmm” and you will have to ask them for a yes or no answer. You are not being rude. You are simply guaranteeing a clear record by making sure that all the responses are audible and recorded correctly. This underscores the fact that you are working together to make sure that there is a clear record for both sides down the road. Let the witness know that s/he will have a chance to review and correct the transcript. Reiterate that substantive changes can impact his/her case. Go back to reiterating that if the witness doesn’t understand the question, s/he should let you know immediately.

5. Objections

Let the witness know that at times one or more of the attorneys in the room will make objections to the questions being asked. Tell the witness that the objections are not a commentary on his or her answers. They do not mean that the witness did anything wrong. Let them know that the objections are directed to a Judge who might read the transcript down the road. The witness should wait for the objecting lawyer to finish objecting and go ahead and answer the question, unless his/her lawyer instructs him/her to no do so. Again any objections or argument among the lawyers is not directed toward the witness and should not be treated as such.

This will help keep the witness from getting caught up in some of the objection/bickering drama created by useless objections at the deposition.

Overall, these admonitions will help build rapport with the witness and help create a clear record which is built on a solid foundation. In my next blog post, I will discuss some additional admonitions which will help further strengthen your record.

To download your deposition admonition cheat sheet, click on the link below.

Read previous posts in this series here:

Check back for Part 3 in this series.

You can follow Shahrad Milanfar on twitter here: @CaMediation and read more on his blog:

One thought on “Depositions Part One: The Importance of Deposition Admonitions Part 2
  • Sorry but i think some of what you say is self serving . Just tell the witness to please answer audibly and no uhuh or huhu . i preface it by saying I’m sure your counsel advised you.Then after they give their name Ask if you call them by their first name. That’s comfort level to me.
    Anyone who goes thru all these gyrations needs to be called out on it.
    I tell the attorney they don’t make the rules and esp if it’s my client I tell them I’ve dicussed this with them and kindly tell them it’s somewhat insulting as if I had not done by job.
    Ask specifically what have they reviewed in preparation for the depo. Then ask for it.

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