Nolo's Deposition Handbook: The Essential Guide for Anyone Facing or Conducting a Deposition

By Paul Bergman and Albert Moore

Take the fear and mystery out of your deposition

Nolo’s Deposition Handbook is a must-read for anyone taking, defending, or facing a deposition. You’ll find all the information and instructions you need, whether or not a lawyer is representing you.

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.

Nolo’s Deposition Handbook is an excellent resource for:

• eyewitnesses
• expert witnesses
• parties to a lawsuit
• people who represent themselves in court
• lawyers, law students, and legal assistants, and
• anyone participating in a deposition conducted over the Internet.

The 8th edition is updated to include information on electronic discovery and the latest statutes, court cases, and federal rules, and provides information on how to set up and conduct a deposition remotely, using a computer.

• Language: English
• Publisher: NOLO
• Release date: Aug 5, 2022
• ISBN: 9781413329889

Paul Bergman

Paul Bergman is a Professor of Law at the UCLA School of Law and a recipient of two University Distinguished Teaching Awards. His books include Nolo’s Deposition Handbook (with Moore, Nolo); Reel Justice: The Courtroom Goes to the Movies (with Asimow, Andrews McMeel); Trial Advocacy: Inferences, Arguments, Techniques (with Moore and Binder, West Publishing Co.) Trial Advocacy in a Nutshell (West Publishing Co.); Represent Yourself in Court: How to Prepare & Try a Winning Case (with Berman, Nolo); Depositions in a Nutshell (with Moore, Binder, and Light, West Publishing Co.); Lawyers as Counselors: A Client-Centered Approach (with Binder, Tremblay, and Weinstein, West Publishing Co); Evidence Law and Practice (with Friedland and Benham); Cracking the Case Method (with Goodman and Holm, West Academic Publishing); Evidence Law and Practice (with Friedland and Benham, Carolina Academic Press); and You Matter: Ten Spiritual Commitments for a Richer and More Meaningful Life (with Rabbi Mark Borovitz, AuthorHouse). Paul has also published numerous articles in law journals. And, using clips from law-related films, he regularly gives presentations to lawyers, judges, and community groups.

Book preview

Introduction: Your Deposition Companion

Part One: You Are a Deponent

Part Two: Taking and Defending Depositions

The Federal Rules of Civil Procedure (FRCP)

Finding the Deposition Rules That Apply to You

Depositions in Criminal Cases

Federal Court Cases

State Court Cases

Local Rules

Depositions enable the parties to a lawsuit (people who are suing, called plaintiffs, and people who are being sued, called defendants) to question each other and other witnesses before going to court. A deposition is like testimony in court—under oath—but it occurs before trial, outside the courtroom, and without a judge or jury present. While depositions have a number of uses, parties take depositions primarily in the hope of uncovering information that supports their legal claims and undermines the other side’s legal claims.

This book explains and illustrates deposition rules, procedures, and strategies in civil cases (legal disputes between private parties). It does not cover criminal cases. Depositions are one of several methods of investigating the facts of a case before trial that together constitute what lawyers call formal discovery (other methods of formal discovery are covered in Chapter 9). This book focuses on depositions for a number of important reasons:

Information uncovered during depositions is often the key to a case’s outcome, whether the case is resolved through a voluntary settlement by the parties (as is usually true), a summary judgment (a decision by a judge before the trial begins), or a trial.

While other formal discovery methods rely on written questions and answers drafted mainly by lawyers, depositions consist of live, oral testimony by deponents (people who are questioned at depositions), including plaintiffs, defendants, and nonparty witnesses (witnesses with case-related information but no formal involvement in a lawsuit). Parties often have days or even weeks to respond to written discovery requests, while deponents must answer deposition questions immediately. Depositions, therefore, tend to be far more stressful than other forms of formal discovery, so you’ll want to know in advance exactly what will happen and how to prepare.

Because depositions typically take place in private conference rooms rather than in public courtrooms, only people who have testified at depositions before are likely to understand what will happen at a deposition and the importance of their testimony.

Depositions are usually the most expensive discovery tool. If you’re a party and you hire an attorney, you’ll incur attorney’s fees if your attorney takes or defends a deposition. If you’re the party taking the deposition, you’ll also have to pay for a court reporter to transcribe the testimony, a videographer to video record it, or both.

Part One: You Are a Deponent

This book is divided into two parts. Part One (Chapters 1 through 8) provides information primarily for the person who is being deposed (questioned under oath at a deposition). Part Two (Chapters 9 through 14) explains how to take a deposition or defend a party or witness on your side who is being deposed.

Part One explains deposition rules and procedures from the perspective of a deponent (the person being asked questions). You may be a deponent because:

You’re a party (plaintiff or defendant) to a lawsuit. For example, you’re a plaintiff suing the defendant, your former employer, for wrongful termination; the employer’s lawyer deposes you.

You’re a nonparty witness who knows case-related information. For example, you’re a bystander who observed a collision between two cars whose drivers are now the parties to a lawsuit. The driver of either car might depose you.

You’re an expert witness who has been hired by a party to investigate a case and render opinions based on your specialized knowledge. For example, you are a medical expert who has been retained by the plaintiff in a medical malpractice case to explain why the defendant doctor’s treatment of the plaintiff was substandard; the defendant chooses to depose you.

No matter what type of deponent you are, and whether or not you are represented by a lawyer, you should read Part One to learn:

what to do (and not do) in preparation for your deposition (Chapter 3)

what to do if you’re asked to bring documents to the deposition (Chapter 3)

how far you can be required to travel for a deposition and whether you are entitled to be paid for time spent testifying (Chapter 1)

the three Golden Rules for answering deposition questions (Chapter 4)

what questions you have a legal right to refuse to answer (Chapter 7)

whether you have to answer questions that your lawyer objects to (Chapter 4)

how to deal with trick questions that many lawyers love to ask during depositions (Chapter 4)

what to do if the deposing lawyer is verbally abusive (Chapter 4)

what warnings you’ll likely be given at the beginning of the deposition (Chapter 5), and

if you’re an expert witness, what your role will be in the process before trial and what types of questions you’re likely to be asked at deposition (Chapter 8).

Part Two: Taking and Defending Depositions

Part Two explains deposition rules and procedures from the perspective of parties who do not have a lawyer and are representing themselves. Most people in the legal system refer to people who represent themselves as pro per or pro se litigants. (Pro se means in one’s own behalf in Latin; a litigant is a party engaged in the process of a lawsuit, also called litigation.)

When representing yourself, you may be either:

The deposing party, the party who arranges for and conducts the deposition questioning. For example, you might be a pro se defendant in an auto accident case and you depose the plaintiff, the driver of the other car.

The defending party, the party who is present at a deposition arranged for and conducted by your adversary (the other side). As a defending party, you are entitled to be present at depositions taken by your adversary and (among other things) to question the deponent after your adversary finishes his or her questioning. For example, you’re a pro se defendant in an auto accident case and you defend the deposition the plaintiff takes of a nonparty witness—your friend who was a passenger in your car at the time of the accident.

If you’re representing yourself and either taking or defending a deposition, you’ll need to read both Parts One and Two of this book. In Part Two, you’ll learn about such issues as:

how depositions compare to the other methods of formal discovery (Chapter 9)

how to arrange for a deposition, including how to require the deponent to produce case-related documents (Chapters 9 and 10)

how to depose a hostile witness—one whose testimony goes against you and who might not want to discuss the case with you (Chapter 11)

how and when to depose a friendly witness—one who supports your legal claims (Chapter 13)

how to respond when an opposing lawyer engages in intimidating or other improper behavior (Chapters 10 and 12)

how to make and respond to objections (Chapters 10 and 12)

how to take and defend video recorded depositions (Chapter 14), and

whether to bring out helpful information that your adversary has overlooked (Chapter 10).

The Federal Rules of Civil Procedure (FRCP)

The deposition rules and procedures described in this book primarily come from a set of laws known as the Federal Rules of Civil Procedure. (Everyone with a law degree calls them the FRCP, so you’ll need to remember this bit of alphabet soup.) The FRCP establish general procedures for civil cases in all federal district courts (trial courts), from the time you file the case through the final judgment. Rules 26 through 30, 32, 37, and 45 are the main rules that govern depositions. The text of these rules, current as of the date this book was published, is set forth in Appendix A. You can quickly find the FRCP as a whole or specific rules online as well.

Most people using this book will be involved with litigation at the state level, not in a federal court. Nonetheless, our focus on the FRCP is relevant to people in state court, because state rules follow them closely. The whole American system of formal discovery before trial (including depositions) began when Congress enacted the FRCP into law in 1938. These rules were then gradually adopted by the states. Through many amendments over the years, the FRCP have remained the basis for all states’ discovery practices. In fact, many states have adopted the FRCP more or less intact as their own, down to the FRCP’s numbering system and headings. States that have not adopted the FRCP generally have rules that closely mimic FRCP procedures.

Finding the Deposition Rules That Apply to You

If you’re representing yourself in a lawsuit and about to take or defend a deposition, you’ll need to be familiar with the most current version of the discovery and deposition rules in your court. The sections below will help you find those rules.

Depositions in Criminal Cases

This book focuses on depositions in civil cases. In criminal cases, Rule 15 of the Federal Rules of Criminal Procedure provides a very limited right to take depositions. Unlike in civil cases, Rule 15 requires parties to criminal cases to obtain permission from a judge in order to take a deposition. And as a general rule, a judge will grant permission only when a deposition is necessary to preserve the testimony of an important witness who is very likely to be unavailable to testify in person by the time of trial. If the witness is in fact unavailable to testify in person at trial, then the deposition testimony can be read to the judge and jury.

Because Rule 15 focuses on allowing parties to preserve testimony that they would elicit at trial, Rule 15 does not allow prosecutors and defendants to depose each other’s witnesses. This means that a defendant cannot depose a crime victim or any other witness who will testify for the prosecution. And a prosecutor cannot depose a criminal defendant or a defense witness.

While both prosecutors and defendants can seek permission to take depositions, depositions are usually taken by prosecutors when witnesses to crimes are old, infirm, or have begun to exhibit memory loss. Defendants have a right to be present with counsel during depositions taken by prosecutors, and to ask the deponents (witnesses) questions.

Whether depositions take place in the context of civil or criminal cases, the questioning process is much the same. And in both types of cases, witnesses have a right to refuse to answer questions if the answers might implicate them in a crime. If either a prosecutor or a defendant intends to depose you in a criminal case, and you are concerned about whether your testimony might implicate you in a crime, be sure to consult with a criminal defense attorney before attending the deposition. And consider asking your lawyer to go with you to the deposition so that the lawyer can protect your constitutional right against self-incrimination.

Federal Court Cases

If you’re representing yourself in a federal court case, begin by reading through the FRCP discovery and deposition rules set out in Appendix A. Of course, you’ll want to check to see whether those rules have been amended since the date of this book’s publication. The best way to do so is online. If you type FRCP or Federal Rules of Civil Procedure into a search engine, you will quickly find access through websites maintained by the federal government, educational institutions, and others.

CAUTION

Always check for amendments to the FRCP. The FRCP are often amended. For example, voluntary disclosure requirements (discussed in Chapter 9) first came into being in the 1990s and were substantially modified in 1999. Similarly, new provisions on electronic discovery were added in 2006. Thus, if you’re representing yourself in a federal case, you must make sure that you have the current version of the FRCP before embarking on depositions and other forms of discovery.

State Court Cases

If you’re representing yourself in a state court case, you’ll undoubtedly find that, as mentioned above, your state’s procedures will closely resemble those set forth in the FRCP. Nevertheless, you’ll want to consult your state’s deposition rules before testifying at, arranging for, or defending a deposition, because some procedures may depart from the federal rule. For example, issues like how much advance notice you have to give a deponent before taking a deposition, and how much money you have to give to a nonparty witness whose deposition you want to take, can vary from one state to another.

Failure to follow your state’s rules exactly can have serious consequences. For example, if your failure to make proper arrangements causes a deposition to be canceled at the last minute, you might have to reimburse your adversary for the expenses of rescheduling. Repeated mistakes might even lead a judge to order that you not be allowed to conduct discovery at all.

Follow the instructions in Appendix B for finding your state’s rules online.

Local Rules

Whether a case is in federal or state court, you should also consult any local rules that apply. The court in which a case is filed might have adopted local rules that supplement general rules governing depositions and discovery, whether those are the Federal Rules of Civil Procedure or your state laws. Local rules tend to relate to things specific to your location, like how local judges coordinate phone conferences to discuss discovery disputes, or technical issues such as how many copies of documents must be submitted to the court or the formatting of documents. Check your local court’s website or telephone the court clerk to find out whether local rules exist and how you can get a copy.

Get Updates and More Online

When there are important changes to the information in this book, we’ll post updates online, on a page dedicated to this book:

www.nolo.com/back-of-book/DEP.html.

PART

1

You Are a Deponent

Part One (Chapters 1 through 8) gives all the information you will need to prepare to have your deposition taken. Whether you are deposed as a party to a lawsuit, a nonparty witness, or an expert witness, Part One has information that will help you testify effectively and accurately. (For an overview of the topics addressed in Part One, please see the Introduction.)

CHAPTER

1

An Overview of Deposition Procedures

Depositions in a Nutshell

Providing Notice of a Deposition

Types of Deposition Notices

Significance of a Deposition Notice

Contents of a Deposition Notice

Deposition Scheduling Requirements

Travel Requirements

Length of Advance Notice

Witness Fees

Rescheduling Your Deposition

Avoiding a Deposition Altogether

Duration of Depositions

Virtual Depositions

Deposition Attendees

The Deponent

The Parties

Experts

Lawyers for the Parties

Lawyers for Nonparty Witnesses

The Court Reporter

Judges

The Deponent’s Friend or Relative

Document Production at Depositions

Reviewing and Signing a Deposition

This chapter is about deposition procedures. Unless you have had your deposition taken, these procedures will likely be unfamiliar. Most depositions take place in private conference rooms rather than in public courtrooms. You may have seen depositions depicted in films like The Social Network, Class Action, and The Rainmaker, but please don’t base your expectations on movies. Along with other information, this chapter describes how depositions are organized, how you might be able to alter the arrangements if necessary, and what role each person at the deposition will play.

Depositions in a Nutshell

A deposition normally consists of a lawyer (or a self-represented person) questioning the deponent (the person being deposed). The deponent can be a party to the lawsuit or a nonparty witness (someone who may have case-related information, such as a bystander who observes an auto accident). Depositions may seem informal because they typically take place in conference rooms with no judge present. But do not be fooled—they share many characteristics with testimony in court during a trial.

For example, deponents are placed under oath and their testimony is recorded and transcribed by an official court reporter. (Increasingly, depositions are video recorded as well. See Chapter 14.) Moreover, because the overwhelming percentage of cases settle prior to trial, a deposition is often a witness’s 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 when giving deposition testimony as they would be when testifying in a courtroom at trial.

Providing Notice of a Deposition

A deposing party (a party planning to take a deposition) has to give you advance written notice of a deposition’s time and place. This section explains these notice procedures.

Types of Deposition Notices

The deposition process starts with one of two types of notices. If a deponent is a witness and not a party to a lawsuit (plaintiff or defendant), the deponent is personally served with a court order usually called a Subpoena re Deposition. (See Sample Form #1 in Appendix C.)

A party deponent receives a more informal notice called a Notice of Deposition. (See Sample Form #4 in Appendix C.) No court order (subpoena) is necessary to require a party to attend a deposition.

Significance of a Deposition Notice

Both party and nonparty deponents have a legal duty to attend a properly noticed deposition. A party who fails to cooperate 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 for repeated failures to attend.

A nonparty witness who fails to obey a Deposition Subpoena can be held in contempt of court, and a bench warrant can be issued for the witness’s arrest. A judge can also impose a hefty fine for failure to attend a deposition.

Contents of a Deposition Notice

Every deposition notice will indicate the place and time of the deposition. In addition, both forms of notice generally include the following information:

The name, telephone number, and address (including probably the email address) of the attorney taking the deposition, and which party the attorney represents (for example, Attorney for Plaintiff).

The title of the court in which the lawsuit is pending (for example, Central District Court, Cook County).

A caption indicating the names of the parties (for example, York vs. Lancaster) and the official case number.

Whether the witness must bring documents to the deposition. For party deponents, this information may be included in the notice or in an attached separate document often called a Request for Production of Documents. For nonparty deponents, this information will be included in a form of subpoena usually called a Deposition Subpoena Duces Tecum. (See Sample Form #2 in Appendix C.)

Whether the deposition will be audio or video recorded instead of (or, more likely, in addition to) being transcribed by a court reporter (stenographer).

Where the deposition will be held. Usually, the attorney who schedules a deposition holds it on home turf, in a conference room in the attorney’s law offices. However, an attorney might also take a deposition in a conference room provided by a court reporting service, especially if the deposition will require equipment that the deposing attorney lacks (such as a a videoconferencing facility for a remote deposition). A deposition may also be virtual, meaning that the deposition attendees come together electronically rather than by being in the same room. (See the section Virtual Depositions, below, for more information.)

Deposition Scheduling Requirements

The sections below describe the rules that parties must follow when preparing and serving deposition notices.

Travel Requirements

As a general rule, a nonparty witness can’t be forced to attend a deposition more than 100 miles away from the witness’s home or place of business. (FRCP 45(c)(3)(A)(ii).) Parties may have to submit to depositions in more distant locales. A party who thinks that having to be deposed in a distant locale will cause an undue burden or financial hardship might be able to reschedule a deposition (see below).

Length of Advance Notice

A deposition notice must provide reasonable advance warning of a deposition. (FRCP 30(b)(1).) Although the rules do not give a precise definition of reasonable, less than ten days’ notice is probably unreasonable (except in rare cases of emergency). As a courtesy, many deposing lawyers will contact a witness or the witness’s attorney before scheduling a deposition, to ensure that the chosen date and place are convenient.

Witness Fees

If you’re a party, you are not entitled to payment for testifying at a deposition. If you’re a nonparty witness, you can be paid a small amount for testifying at a deposition.

Normally, a check for a nonparty witness’s fee will be attached to the Deposition Subpoena. If not, a witness can demand payment of fees in advance and may refuse to testify until the fee is paid.

Rescheduling Your Deposition

It is often possible to change the date, time, or place of a deposition, either by personally contacting the deposing lawyer or through an attorney. Explain your inconvenience and suggest alternatives. (Examples of a reasonable justification would include a previously scheduled vacation or an important business meeting.)

Expert Witness Fees

Unlike ordinary nonparty witnesses, expert witnesses are entitled to demand their usual professional fees for the time spent testifying at deposition. Experts’ deposition fees may amount to hundreds or even thousands of dollars per hour. For additional discussion of expert witness fees and expert deponents in general, see Chapter 8.

Sample Letter to Reschedule a Deposition

October 21, 20xx

Dear Mr. Blasi,

This letter is to follow up on our telephone conversation of October 19. In that conversation, I told you that I am not able to appear for a deposition next Wednesday, October 28. As I told you, I had previously scheduled an important business meeting with three other people on that date that 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 don’t think that’s reasonable advance notice, especially for a businessperson such as myself.

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 28.

Sincerely,

Carson Taylor

Such a letter may convince the deposing lawyer to agree to reschedule your deposition. However, if the lawyer continues to refuse to change the date and you don’t appear, the lawyer might go to court and ask a judge to sanction (penalize) you for failing to show up.

To avoid this slight risk of incurring sanctions, a witness can go to court before a scheduled deposition and seek a protective order rescheduling a deposition. A protective order is an order that a judge makes to protect any party or person from annoyance, embarrassment, oppression, or undue burden or expense in connection with any discovery procedure, including depositions. (See FRCP 26(c). For more information about how to seek a protective order, see Chapter 10.)

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 1.410, which provides that you can be subpoenaed for examination only in the county where you reside or are employed.

First, you should contact the party that subpoenaed you and indicate that you will not attend the deposition. The party might respond by offering to reimburse you for any expenses you incur by traveling to Florida. You are free to accept or reject the offer. If you reject the offer to go to Florida, the party could come to New York and subpoena you under New York state law.

If the party insists that you come to Florida at your own expense, you have the right to ignore the subpoena and simply fail to show up. Or you could retain a Florida attorney and have the attorney move to quash the subpoena (have it declared invalid). The order should be granted, and you should be reimbursed for your attorney’s fees.

Avoiding a Deposition Altogether

Nonparty witnesses sometimes think that they shouldn’t be deposed at all. For example, witnesses may think that they know so little about a case that a deposition is a waste of time. In this situation, a witness may contact the deposing attorney and try to discuss the case informally. Attorneys usually don’t want to waste their time and their clients’ money taking unproductive depositions. An informal interview may convince the attorney that you are not worth deposing.

If the attorney insists on taking a deposition, you may refuse to appear at the deposition. However, this is risky, as a judge may hold you in contempt of court. Therefore, you should probably seek legal advice before refusing to be deposed at all. Alternatively, you could go to court and seek a protective order relieving you from having to be deposed.

EXAMPLE

An independent bookseller has brought suit for unfair business practices against All Books, a book wholesaler, claiming that All Books discriminates against the independent bookshop and in favor of a nearby recently opened bookstore that is part of a national bookstore chain. All Books sends a subpoena for the deposition of Fay Perback, who owns the only other independent bookshop in town.

Fay orders books from a different wholesaler, has no involvement in the lawsuit, and knows nothing about it. Fay thinks that the only reason All Books wants to depose her is to get back at her for not doing business with All Books by exposing her business practices to the other bookstores, making it more difficult for her to compete.

If the deposing lawyer refuses Fay’s request to cancel her deposition, Fay can go to court and seek a protective order. Fay would explain to the court her lack of information and how her answers to deposition questions would waste her time and hurt her business. If the wholesaler can’t satisfactorily explain to a judge what information Fay has that might have a bearing on the case, the judge will quash the subpoena and order that Fay’s deposition not be taken.

Duration of Depositions

If you are a party to a lawsuit, FRCP 30(d)(1) limits your deposition to one day of seven hours, unless the time is extended by a court order or you agree to a longer deposition (your state’s rule might include exceptions to this limit). The seven-hour limit does not include breaks for lunch or recesses for the participants to stretch their legs, make phone calls, or see to other personal needs.

The deposition of a nonparty deponent may last more than seven hours if all the parties agree to an extension or if a court orders a longer deposition. A nonparty deponent does not have the power to prevent the parties from agreeing to extending the time of a deposition.

When a deposition lasts longer than a day, a deponent isn’t necessarily closeted away from daily life for several days in a row. For example, a three-day deposition may take place one day per week for three different weeks.

Virtual Depositions

Prior to the 2020 onset of the COVID-19 pandemic, almost all depositions were conducted in-person, with all participants in the same office or conference room. (See the section Deposition Attendees, below, for an overview of typical attendees.) Lockdowns and social distancing requirements that often made it impossible for people to be together in closed physical spaces created the need for emergency orders permitting virtual depositions.

A deposition is virtual when it takes place without all participants present in the same room, instead permitting people who are physically distant to participate electronically. Virtual depositions typically take place using computer software such as Zoom, to enable participants in different locations to see and hear each other in real time. The ability to participate in a deposition remotely rather than having to incur the cost and inconvenience of travel is an advantage of virtual depositions, and they are likely to remain a staple of the discovery process even after the COVID-19 pandemic abates. In fact, some jurisdictions have already made the initial emergency orders permitting virtual depositions permanent. (See, for example, Cal. Civ. Proc. § 2025.310(a).)

While virtual depositions may often be a more cost-effective and convenient option than a traditional in-person deposition, they present several challenges that differ from traditional depositions:

Technological issues. Virtual depositions depend on everyone involved having a good internet connection. If anyone’s internet cuts out, or if participants confront other technological problems, the questioning will likely not progress as smoothly as it would in person.

Timing concerns. If participants in a deposition are located in different time zones, scheduling the deposition at a time convenient for everyone can be a challenge. Often, the deposition is going to start earlier than desired for some participants and end later than desired for others.

Document use. When the participants in a deposition are not physically present in the same room, it can be more difficult to utilize a document or other exhibit. In an in-person deposition, the questioner (a party or the party’s lawyer) who wants to ask questions about a document can hand the document to the deponent and ask the questions. However, when the participants are not in the same room, the questioner cannot simply hand the document across the table. Instead, the questioner needs to plan ahead and choose a way to get desired exhibits to the deponent, such as:

■providing the court reporter with the documents prior to the deposition to be marked as exhibits, and then instructing the court reporter to share each exhibit with the deponent as a screen share at the point the questioner wants to show the deponent each exhibit

■using a screen share from the questioner’s own computer during the deposition, and then separately sending all documents that were screen shared during the deposition to the court reporter after the deposition, to be marked as exhibits and included with the deposition transcript

■sending an electronic copy of each document to the deponent during the deposition, if the software used to conduct the deposition permits the sharing of documents among participants, or

■sending the deponent (and their lawyer) a copy of all exhibits prior to the deposition.

Difficulty in building rapport. Questioners often try to build rapport with a deponent, in an attempt to get the deponent to feel comfortable and open up more during questioning. But even experienced attorneys find it more difficult to build rapport with someone when limited to distanced conversations through a webcam, compared to face-to-face communication.

Difficulty in controlling the deponent. Sometimes questioners try to obtain desired testimony through aggressive questioning techniques. Many questioners find it far easier to intimidate a deponent and increase the likelihood of obtaining desired testimony when the deponent is across the table, as opposed to across the country.

Potential for improper behavior. When a deposition is virtual, it is possible that an unscrupulous defending attorney could improperly instruct the deponent on what to say, what not to say, or both; and this unethical conduct could avoid detection. For example, an attorney could send texts or other forms of electronic communication to the deponent, coaching the deponent on how to answer questions. Such conduct can be more difficult, if not impossible, to catch than when participants are in the same room. As a result, some questioners try to lower this risk by asking the deponent to agree to not use cellphones or any other forms of communication during questioning.

Deposition Attendees

Who are the people who participate in depositions? This section looks at all the significant players who typically are present (and sometimes not present) at a deposition.

The Deponent

The star of the show is the deponent, who can be a party or a nonparty witness who has information concerning the parties’ dispute. The deponent’s testimony will typically influence both parties’ strategies for reaching a settlement or going to trial. (See Chapter 2 for information on how deposition testimony is used in litigation.)

What to Do When a Deposing Lawyer Prolongs Your Deposition

If you believe that a deposing lawyer is prolonging your deposition in bad faith (say, by repeatedly asking about things that have nothing to do with the case or by going over the same ground again and again), you can go to court and ask a judge to issue a protective order to stop further questioning. Or, you could simply tell the lawyer that you’ll continue with the deposition for a limited amount of additional time only. For example, you might say: This is the second day of this deposition, and for the last two hours you’ve been asking about stuff that has nothing to do with the case. I’m willing to stay for another two hours, but that’s it.

However, you shouldn’t threaten to walk out without good reason. A judge who thinks that you’re trying to avoid answering relevant questions or that you’re being excessively impatient or thin-skinned can require you to reimburse the deposing party for the costs and attorney’s fees it has to spend seeking a court order to resume your deposition.

The Parties

Parties have to attend properly noticed depositions, and also have the right to attend all other depositions. Parties foot the bills and may want to know how their lawyers are spending their money. Also, a party might want to voluntarily attend a nonparty witness’s deposition for any of the following reasons:

The party wants to lend moral support to a deponent who supports the party’s version of events or who is a friend or family member. For example, in a personal injury case, a plaintiff (the party suing) might attend her husband’s deposition taken by the defendant (the party being sued) if her husband was a passenger in the car at the time it was struck by the defendant’s car.

The party wants to watch the deposition of a deponent who supports the opposing party in order to evaluate the deponent’s demeanor and persuasiveness. This evaluation can help the party decide whether to agree to a settlement or go to trial. For example, a personal injury plaintiff might attend the deposition of the defendant’s accident reconstruction expert witness in