Nolos deposition handbook free download

Packed with concrete suggestions and examples, this book explains how to arrange a convenient date, prepare for the deposition, and respond to questions with confidence. Best of all, you'll learn the three "golden rules" for answering questions, and the trick questions lawyers often use to influence testimony. Written in plain English, Nolo's Deposition Handbook is an excellent resource for:.

Area of Law Bestsellers. Legal Research. Update product Results. Products Results: 1 - 3 of 3 for "deposition". Take the fear and mystery out of your deposition Nolo's Deposition Handbook is the complete guide for anyone who will conduct a deposition or be deposed. Increasingly, depositions are videotaped as well. See Chapter Moreover, because the overwhelming percentage of cases settle prior to trial, your deposition may be your only chance to testify.

Thus, lawyers often prepare as carefully for depositions as for trial. And because what is said at a deposition can have a major impact on the eventual resolution of a dispute, deponents should be as careful and as accurate in giving deposition testimony as they would be in testifying in a courtroom at trial.

This section explains these notice procedures. Your deposition process will start when you receive one of two types of notices. See Sample Form 1 in Appendix C. A subpoena is a court order requiring you to show up at the deposition, and it is required for nonparties. See Sample Form 4 in Appendix C. No subpoena is necessary to require a party to attend a deposition.

As a party, if you fail to cooperate you can be sanctioned penalized by a judge for failing to appear at the time and place established in the Notice of Deposition. The sanction can range from a monetary fine that you must pay to your adversary to dismissal of your legal claims or defenses if you repeatedly fail to attend. If you are a nonparty witness and you fail to obey a Deposition Subpoena, you can be held in contempt of court in violation of a court order and a bench warrant can be issued for your arrest.

And if a judge finds you to be in contempt of court, you may be ordered to pay a hefty fine. In addition, both forms of notice generally include the following information:. The sections below describe the rules that parties must follow when preparing and serving deposition notices. Parties may have to submit to depositions in more distant locales. Whether you are a party or nonparty witness, a deposition notice must give you reasonable advance warning that your deposition is to be taken. See FRCP 30 b 1.

Although there is no precise definition of reasonable, except in rare cases of emergency less than ten days notice is probably unreasonable.

As a courtesy, many deposing lawyers will contact you or your attorney if you have one before scheduling your deposition to ensure that the chosen date is convenient. Normally, a check for your witness fee will be attached to the Deposition Subpoena. If not, demand your witness fees from the person who serves you with the subpoena. If your demand for payment is ignored at the time of service, repeat the demand when your deposition begins.

If you are again turned down, you may refuse to testify until the fee is paid. If the chosen date, time, or place of your deposition is inconvenient, you can usually get it changed. To do so, contact your attorney if you have one. Tell the attorney why the chosen date, time, or place is inconvenient. If possible, suggest alternatives that will work for you. Attorneys routinely agree to change inconvenient deposition arrangements if you ask far enough in advance and have a reasonable justification for making the request.

Examples of a reasonable justification would include a previously scheduled vacation or an important business meeting. If the deposing lawyer refuses to change the deposition arrangements, send the lawyer a letter or email explaining why you want to change the deposition arrangements. If you believe that the deposition notice failed to comply with any of the requirements described, above for example, you were given only five days advance notice , you should include that as well.

Finally, state that you will not appear for the deposition and keep a copy of the correspondence for your files. This letter is to follow up on our telephone conversation of a couple of days ago.

In that conversation, I told you that I am not able to appear for a deposition next Wednesday, October As I told you, I had previously scheduled an important business meeting with three other people on that date, and it simply cannot be rescheduled. In addition to the inconvenience of the October 28 date, I was served with a subpoena on October 20, only eight days before I was supposed to be deposed.

I repeat here what I told you on the phone. I will make myself available for a deposition if you give me reasonable advance notice, especially if you select any of the dates discussed: November 17 or 18 or December 1 or 2. Otherwise, please be advised that I will not appear for a deposition on October For additional discussion of expert witness fees and expert deponents in general, see Chapter 8.

Such a letter may convince the deposing lawyer that you are serious. If so, the lawyer may agree to reschedule your deposition.

If you do not want to run this slight risk of incurring sanctions, you can go to court before the scheduled deposition date and seek a protective order rescheduling your deposition. See FRCP 26 c. For more information about how to seek a protective order, see Chapter Example You observed an automobile accident while on vacation in Florida and gave your name and address to a police officer.

Several months after returning home to New York, you receive a Subpoena re Deposition ordering you to attend a deposition in Florida. The subpoena is invalid under Florida Rule of Civil Procedure 1. First, you should contact the party that subpoenaed you and indicate that you will not attend the deposition.

A: No, they are at my office. Q: Could you bring those notes to your deposition tomorrow? A: I thought you were supposed to send me a written discovery request if you wanted documents from me. And if necessary I can send you a formal request for production of documents, which will require you to produce your notes.

This makes sense, particularly if you are confident in your case and have nothing to hide. On the other hand, if you think that the notes may be embarrassing, you may wish to politely refuse to produce them voluntarily. After all, the deposing party, who probably has loads of other things to do, may not want them badly enough to bother sending out a formal notice to produce. Or, the deposing party may simply forget to do so.

Finishing Interrupted Answers Once you have begun to answer a question, you are entitled to finish your answer as long as it is responsive to the question. Nevertheless, a questioner may interrupt and cut you off mid-answer. Often, such interruptions are inadvertent or simply the result of bad manners. However, some lawyers try to make strategic interruptions. If you are interrupted and you want to finish your answer, politely inform the questioner that you have not finished your answer and that you wish to do so.

Example Q: What did you do after you called the police? A: I went over to see if I could help any of the people who had been involved in the accident, and Q: Did my client say anything about whether he was hurt? As I was saying, I went over to see if I could help any of the people who had been involved in the accident, and I talked to two other women at the scene who said they had seen the accident happen. On top of that, you may have to contend with a questioner whose manner of questioning is aggressive or even antagonistic.

Some lawyers consider fatigue to be an ally. As the session goes on and on, your concentration may wane and you are more likely to violate the Golden Rules. You might, for example, stop listening closely to questions, guess at the meaning of a question, or volunteer information in an attempt to get the deposition over with as quickly as possible. Experienced attorneys anticipate the fatigue phenomenon and often save questions on important topics for late in the day—or just before the lunch break.

While you cannot completely eliminate mental fatigue, you can minimize the likelihood that it will adversely effect your deposition testimony.

You will be more mentally alert if you take frequent breaks throughout the day. If you have been testifying for 45 minutes or so, tell the questioner that you need a five-minute break to stretch your legs. Many questioners will readily agree, as mental fatigue is also a problem for them. Although food may be the last thing on your mind during your deposition, be sure to eat enough to keep your brain and body adequately fueled. Even if you feel nervous or have other things to attend to during breaks, be sure to eat enough to stay alert.

Under FRCP 30 d 2 , a deposition is normally limited to one day of seven hours. However, if you are too mentally fatigued to testify for this length of time in one stretch, you can insist on calling it a day.

This is your right—you are not in prison and no one can stop you from leaving. Of course, you will have to agree to finish the deposition the following day or at some later date. Example Q: Please tell me everything that your supervisor did during the three years you worked at the company that you believe was discriminatory.

Q: Actually, I only have a few more questions and then your deposition will be complete. So if you can stay for a half hour more, we can finish up today. Q: How about a compromise. What time do you want me to show up tomorrow? However, the deponent wisely insists on suspending the deposition for the day.

Chances are it will be inconvenient for you to return another day and, of course, the questioner might think of a lot more questions overnight. Objections During the deposition, you may hear one of the lawyers or a self-represented party object to a question. In short, the objections do not affect the deposition itself—you almost always have to answer objected-to questions.

If you are representing yourself, see Chapters 10 and 12 for more information on how to make and respond to objections. For example, your attorney might instruct you not to answer a question that asks you to reveal privileged information such as a conversation you had with the lawyer.

If you are a disinterested nonparty witness, you probably will not want to make this request and take the additional time and trouble to review your deposition testimony. If you opt to review the transcript and you believe that any portion of your deposition testimony is inaccurate, you should change it. You must sign the deposition under penalty of perjury. Your signature indicates your belief that your testimony is accurate as of the time you sign the transcript.

Therefore, you must change inaccurate testimony before you sign. If you decide not to review the transcript, you waive the right to change your deposition testimony. That piece of paper may read something like the following examples. I now realize that the question asked whether we ever talked about a new computer system, and we did talk about that at other times.

Of course, any change you make in your deposition transcript will be apparent to all parties. At trial or during settlement negotiations, a party may argue that your testimony is not credible because you later made a significant change.

A substantial number of significant changes of key testimony might even result in a judge ordering your deposition to be resumed so that the deposing party can ask about the reason for the changes. In short, do not view your right to make changes as an excuse for sloppy testimony.

You arrive at the law office of the attorney who scheduled your deposition. After a short wait in a reception area, during which you are offered coffee or a cold drink, you are shown into a small conference room. Waiting in the conference room are two attorneys. The deposing attorney, who represents the plaintiff, is a stranger to you. You met with the other attorney, representing the defendant, a couple of days earlier to discuss what would happen at the deposition.

Also in the conference room are the plaintiff and a court reporter. The beginning stages of most depositions are routine. The court reporter is likely to mention his or her name and business address; the date, time, and place of the deposition; and your name as the deponent. The oath is the same one that witnesses take in court. Some admonitions explain deposition procedures. Others establish that a deponent understands the rules of the game and is in good physical and mental condition to participate in that game.

Purposes of Admonitions Admonitions can serve as social icebreakers. A deposing attorney and a deponent are usually complete strangers to each other, and the admonitions portion of a deposition allows for a comfortable few minutes of dialogue to get acquainted before the real questioning begins. But admonitions can have other, less benign purposes as well. For one, the deposing lawyer may attempt to use admonitions to appear fair, nonpartisan, and solicitous of your welfare. Admonitions can also be a tool the deposing attorney can use to attack your credibility if you contradict your deposition testimony later in the case.

As a result, your trial testimony may not carry much credibility. Admonitions: Examples and Explanations Set out below are some typical deposition admonitions. The brief explanatory notes inserted into the dialogue should help you understand why an attorney might ask some of these questions. While the example admonitions represent what is likely to happen at your deposition, variations are common.

You may well encounter different admonitions or admonitions that cover the same ground but are phrased differently. Where Do Admonitions Come From? The admonitions below are not legally required, nor are they simply meaningless creatures of legal custom. Rather, each represents past experience, most of it undoubtedly painful, for one attorney or another. Thus, the admonitions you are given are likely to reflect both the received wisdom of the legal profession and the unique experiences of the lawyer who conducts your deposition.

Example 1 Q: Ms. Varat, my name is Andrea Sherry, and I am the attorney for Mr. Jessie Flowers has filed a lawsuit concerning the loan secured by a deed of trust for the property at E. Today I will be asking you questions to learn information that might be relevant to that lawsuit.

Will you try to do that? Explanatory Note The initial questions above endear the attorney to the court reporter and help to produce a more accurate transcript by reminding you that the reporter cannot take down two voices talking over each other.

Example 2 Q: Have you ever been deposed before, Ms. A: Yes, a couple of times. Explanatory Note Your acknowledgment of prior deposition experience can undercut any possible claim later that you were confused about deposition procedures. Example 3 Q: Do you understand that you were administered an oath by the court reporter and are at trial or swear to an affidavit or declaration written statement signed under oath.

Finally, some lawyers believe these admonitions intimidate a witness who might otherwise shade the truth, by reminding the witness that the proceeding is important—and will have consequences. A: Yes, I do. Q: And do you understand that your testimony has the same importance and significance it would have if you were testifying in court before a judge and a jury?

Will you agree to do that? Q: If you do answer a question, I will assume that you have understood the question and that you are giving me your best possible answer.

Do you understand that? I will. Some lawyers like to get these facts on record so much that they repeat these questions after any significant break in the deposition. Will you agree to tell me when your answer is a guess or an estimate?

A: Okay. Explanatory Note This admonition makes it hard for you to justify a change of story later by claiming that when you gave what seemed to be a definitive deposition answer, you were only guessing. If you can answer a question only by guessing, please tell me that. However, this variation is given less often, since it tends to discourage deponents from making even the most conservative estimates, which may in turn prevent the deposing lawyer from uncovering a lead to helpful evidence.

Explanatory Note As you have probably guessed, this admonition cuts off a potential explanation that a change of testimony later resulted from your being tired and not thinking clearly during your deposition. As you see, the admonition does not commit the attorney to agreeing to your request for a break. Indeed, if the deposing attorney believes that you are providing helpful information, the attorney may request that you delay taking a break until he or she has finished questioning you on the particular topic.

As discussed in Chapter 4, however, you are entitled to take a break at reasonable intervals and can call it a day when you feel too tired to continue. Is that OK with you? Is that all right? Explanatory Note This admonition acknowledges a common occurrence—delayed recollection of important information. In addition, it undermines another potential explanation for a change in testimony later, that you were aware of the additional information at the time of your deposition, but by the time you remembered it, the questioner had moved on to another topic.

Example 9 Q: After the deposition is over, the court reporter will type up my questions and your answers into a transcript. If you request to do so, you can review the transcript for accuracy and sign it under penalty of perjury. When you review your transcript you may change answers that are inaccurate. You should know, however, that if you make changes to the sworn testimony in the transcript after you review it, I and other lawyers in the case will be entitled to point out to the judge or jury at trial that you made changes.

Do you understand that the lawyers may be able to comment on any changes you make in the transcript of your deposition testimony? Q: You should also know that if you testify at trial differently than you testify here today, the lawyers in this case may have an opportunity to ask you why you changed your sworn testimony.

Example 8 Q: Sometimes when you are answering a question, you may realize that looking at some documents would help refresh your memory. Is that all right with you? Explanatory Note By inviting you to enhance your memory with a document, this admonition encourages you to testify as completely as possible. And, through this admonition, the deposing lawyer may find out about documents he or she may not have discovered otherwise. Explanatory Note By warning you that changes to your answers can be called to the attention of a judge and jury, these admonitions encourage you to testify accurately and completely.

I am not trying to pry into your medical situation, but I need to make sure just for the record that you are feeling fine and are able to testify today. Are you ill today? Q: Do you feel fine physically? Q: Are you on any medication? Q: Are you taking any other medications? Q: Do either of the medications that you are taking affect your ability to remember or to testify completely and accurately? A: Sometimes the Relafen makes me tired and I have difficulty concentrating.

Q: Are you experiencing those symptoms now? Q: So you feel that, at the moment, you are having no difficulties remembering and that you can testify accurately and completely? Q: If that should change—if you develop problems concentrating or develop any other symptoms—will you let me know right away? Q: Have you had any alcohol today? Q: Is there anything at all preventing you in any way from giving accurate testimony today?

Q: Is your memory working as well today as it usually does? Explanatory Note 1 All of these admonitions cut off potential explanations for changed testimony later—in this example, that a temporary mental or physical infirmity existed on the day of your deposition that caused your deposition testimony to be inaccurate or incomplete. If your answers make the deposing lawyer doubt your ability to testify fully and accurately, the lawyer may choose to recess the deposition until a later date.

Q: Are you experiencing any symptoms now? For instance, a deponent may be taking medication to treat HIV, or may be receiving cancer treatments. If you do not want to reveal a medical condition or medications that you are taking, you might respond to questions concerning your physical condition as follows: Q: Are you on any medication? A: Yes, but I prefer not to disclose what it is.

Do any of the medications you are taking affect your ability to remember or testify completely and accurately? After covering all admonitions, the deposing lawyer will turn to background questioning, which is the subject of the next chapter. This chapter describes the two most common subjects these questions cover: your education and your employment history. As a result, especially when deposing nonparty witnesses, lawyers sometimes do only perfunctory background questioning—or even skip it entirely.

Hidden Agendas You might think of personal background questions merely as a warm-up for later questioning, like stretching before a jog. However, just as is true with admonitions, savvy deposing lawyers are likely to have more subtle purposes in mind. For example, the lawyer might pretend to be your friend. Background questions seem nonthreatening, and some lawyers think of them as a way to try to ingratiate themselves with the witness.

Or, the lawyer might attempt to hide questions about important topics in general background questioning. Again, some lawyers hope that your defenses will be down during these seemingly innocuous personal background inquiries. If the tactic causes you not to realize the significance of a question, you might disclose information that you would not reveal in response to pointed, case-related inquiries.

For example, assume that you are being deposed by the plaintiff, Ms. Smith, in a lawsuit against Mr. Jones for sexual harassment.

The plaintiff claims that she was subjected to repeated verbal harassment by Jones, her supervisor. The lawyer might wait to ask about your ability to hear hallway conversations until the heart of your deposition.

However, the lawyer may fear that asking you about copy machine noise when challenging your ability to hear what goes on in the hallway may lead you to deny that the copier affects your ability to hear hallway conversations. You will know, from the sequence of the questions, that admitting that the copier is noisy necessarily means admitting that you might not have heard everything that happened in the hall—and that the plaintiff could have been harassed without you noticing.

Q: Did you ever hear Jones talk to the plaintiff? A: Yes, all the time. They used to talk outside my office, which was between their offices. Q: And you never heard Jones make rude comments to the plaintiff during those conversations?

A: No, Jones was always very polite to her. Q: When Jones spoke with the plaintiff outside your office, were you ordinarily able to hear what they both were saying? Q: Was it noisy? A: Not noisy enough to drown out a conversation taking place right outside my office. Contrast the above questions and answers with the following deposition excerpt.

This time, the deposing lawyer slips questions about the noisy copy machine into general background questioning about your job. Did you have your own office? Q: Did your office have a door that opened and closed? Q: When you walked out of your office, what was directly in front of you? Q: What was immediately to the right of your office? Q: What was immediately to the left of your office? A: A small room with a water cooler and a copy machine.

Legitimacy of Background Questions A: Open. Q: I assume that when the copy machine was being used, you could hear it in your office? A: Yes, unless I closed my door. Q: Would you often close your door to block out the copy machine noise? A: Quite often, when I needed to concentrate. Especially if you are a nonparty witness, you may believe that a deposing lawyer has no right to poke into your private life. However, discovery rules do allow questions about your general educational background and work experience.

General background questions are usually proper under this broad standard, because some part of your past may reveal a connection to one of the parties or special knowledge of the facts involved in a dispute. Perhaps as a result, you disclose that you often had to close your door because of copy machine noise.

The point of this example is not to urge you to skew testimony to fit preformed conclusions. Rather, the point is simply that you should answer as carefully and correctly during background questioning as during any other portion of a deposition. Your legal obligation to provide accurate information applies to all stages of a deposition.

Example You are a nonparty witness whose deposition is being taken by a defendant in a personal injury case involving an automobile accident. You happened to be walking by the intersection when two cars collided. Probing your background, the defendant learns that you worked your way through college as a bartender. Because the plaintiff has alleged that the defendant was under the influence of alcohol at the time of the collision, your bartending experience may be relevant to your testimony.

See Chapter 7 for more information on refusing to answer questions. The deposing lawyer then would have to go to court and ask a judge to order you to answer the questions. Rather than halting the deposition to try to convince a judge to order you to answer a bunch of irrelevant and personal questions, the lawyer is likely to move on to more relevant matters.

You run a risk when you refuse to answer personal questions. You may even have to reimburse the deposing party for air travel if the need to stop a deposition, seek a court order, and return forces a deposing party to travel a long distance. Therefore, it makes sense to refuse to answer personal background questions only if they are genuinely invasive of your privacy and you are confident that they are improper.

For more on how to respond to questions you believe improperly invade your privacy, see Chapter 7. Your Employment History The deposing lawyer may ask about your past and present employment in an effort to uncover information that is relevant to the facts of the case, or to build rapport and encourage you to relax.

The subsections below explain two approaches that a deposing lawyer may follow when asking about your employment history. They are not mutually exclusive; the deposing lawyer may follow both tacks.

An employment timeline is not always an unbroken line. If background questioning reveals a gap or two in your employment history, the deposing lawyer may ask why you were unemployed. Such questions are probably legitimately within the broad scope of discovery. You should answer honestly and forthrightly, whether the reason is that you left work to care for a child or ailing relative or that you were fired and had trouble finding a new job.

The following examples further demonstrate how links between employment background and the issues in a case can extend the scope of background questioning. For example, Annette will probably be asked about working conditions in those previous jobs and whether she filed sexual harassment claims against former employers. Among other things, Guillermo is seeking damages for wages he has already lost due to his injuries and for wages he expects to lose in the future.

Bathke saw the arrest and is now being deposed. During background questioning, Bathke testifies that he has been a security guard for ten years. For example, if you have work experience that relates to issues in dispute, the lawyer wants to know about it at your deposition. Have you ever personally been involved in a sexual harassment claim? Do you have any background in police or security work?

Do you have any background or experience in the design of computer software? Your Educational Background The deposing lawyer is also likely to elicit a timeline of your educational background. Typically, questions about your education start with your graduation from high school and continue through any college and post-graduate education. You may also be asked about job-related adult education, such as a course you took to qualify for a professional license or to improve your professional skills.

Even if the attorney realizes that formal education is often a poor indicator of intellectual capacity, the lawyer will know that how judges and jurors evaluate credibility can be affected by your educational achievements. Thus, educational history is well within the scope of discovery and is a topic that the deposing lawyer may explore.

A deposing attorney is likely to ask about your educational background for another reason, too. Just as your work experience may provide you with caserelated expertise, so may your educational background. Thus, an attorney will want to know whether you have any formal schooling in case-related matters. Example 1 Davies is a defendant who operates a small business that has been sued by a municipality for violating the Clean Water Act.

Example 2 Kann is the plaintiff in a real estate fraud case. But the deposing lawyer may also ask about any other aspects of your background that may be related to the case. For example, assume you witnessed an incident allegedly involving the use of excessive force by the police. These are permissible topics of inquiry because they may reveal information about your attitude toward the parties and the issues in the case. This chapter discusses those circumstances.

Normally, under FRCP 30 c , even if deposition questions are objected to and would be improper at trial, you have to answer them. The point of the objection is to prevent the answer from being used against the lawyer later in the case. To understand why parties sometimes object to deposition questions that have to be answered anyway, see Chapter Thus, the circumstances discussed in this chapter constitute exceptions to the general rule that objected-to questions must be answered at deposition.

These are private communications written or oral between people who are in a relationship that state or federal laws recognize as off limits or privileged. A communication is privileged only if it is made in a legally confidential relationship. The sections below review common privileges recognized in practically all courts and identify some others that may be applicable to your case.

The law of privilege, however, is very complex. The rules vary from one court system to another. In some court systems, privilege rules can be created only by statute. In others, judges can create privileges. If the judge agrees to make that order, the judge may also order you to pay any expenses the deposing lawyer incurs by having to seek the court order and reschedule the deposition.

Also, for a brief nontechnical discussion of privilege issues, see Federal Rules of Evidence in a Nutshell, by Michael Graham. Example: Crabapple Corp. Patent cases are governed by federal law, so the federal law of privileges will apply.