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The Importance of Deposition Admonitions Part 3

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Milanfar_ShahradThis post is written by guest blogger: Shahrad Milanfar.

In the last two blog posts, I discussed the reasons behind giving admonitions and suggested the following admonitions as good one to start off with:

1. Full Name

2. Prior depositions and trial testimony

3. The oath

4. The transcript

5. Objections

I’ll now give you a few more admonitions to give, in order to make sure that the witness has all the information s/he needs to give a clear deposition.

6. Estimates v. Guess

Let the witness know that you are entitled to any estimate s/he is able to provide. But, you do not want the witness to guess. For this admonition to work, you have to explain the difference between an estimate and a guess to the witness.  We have all been in deposition where the lawyer uses the length of the conference room table to illustrate the difference between an estimate and a guess. Since I have heard this example thousands of times, I’m going to suggest a different example you may want to use.

“Mr./Ms. ____ (witness) I’m entitled to your best estimate, in this deposition. But, I don’t want you to guess. Just to make sure that we are on the same page, I’m going to give you an example about what the difference is between a guess and an estimate. If I were to ask you how much money you have in your pocket, while you may not know the exact number, you may be able to estimate roughly how much money you have in your pocket. This is because you probably put the money in your pocket yourself and have a good idea about how much money you took out of the bank and how much you spent, leaving a certain amount in your pocket. So, that would be an estimate. But, if I were to ask you how much money I have in my pocket, because you haven’t seen my wallet, anything you say would be a pure guess. Since you haven’t seen the contents of my wallet you have no point of reference and anything you say about what I have in my pocket, would be a guess. Do you understand the distinction?”

7. Breaks

Let the witness know that s/he is entitled to take breaks as needed. You are not there to torture them and force them to be uncomfortable. You are there to facilitate an orderly process. Let the witness know that s/he can take a break at any time as long as there is no question pending. If there is a question to which an answer is needed, s/he can take a break after answering that question. This further reiterates that you do actually care about the witness’  comfort and well being.

8. Medications/drugs and ability to testify

You need to know if the witness has taken any medication or drugs which would hamper his/her ability to testify. I usually tell witnesses that this question is standard and that it is being asked of every witness who gets deposed. That way, you are making sure that the witness knows that s/he is not being singled out. If the answer is no, great. If the answer is yes, you have to dig down deeper to find out what they took and how it may impact the process. You certainly don’t want to take a deposition and have a witness change his/her testimony later because you didn’t give this admonition. Make sure you close the door and lock it.

9. Last two questions

The last two questions I ask are these:

a. Is there any reason why your deposition should not go forward today?

b. Do you have any questions about the deposition process?

Now that you have given all the proper admonitions, you have made the witness feel more comfortable, and because the person now knows the rules,  you have made sure that your client’s rights are being protected. This will help you sleep better at night, provided you properly prepare for the deposition and make sure that you cover all the bases. But that’s another blog post.

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

Read previous posts in this series here:


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

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