Taking depositions

The Supreme Court of Kentucky has entered  Administrative Order 2020-14  regarding COVID-19 and custody and parenting time orders. Please see our COVID-19 Frequently Asked Questions and Answers for more information.

Journal Categories

This is a very long post, but I think even very experienced litigators will enjoy it. Most of it is below the fold so you can click "continue reading..." as you have time to take it in, or come back to it before you take your next deposition. Vicki Pynchon has been sharing tips for less experienced lawyers on Settle It Now Negotiation Blog. Of depositions she writes that they are a stimulating, character-building, multi-dimensional board game with real stakes. You never master it. That's the good of it. There's always a challenge. Her lessons from the school of hard knocks are insightful for all of us. While the series is not finished, there is just too much already available not to share. Her Funnel Technique is an easy road map for any depo.
Some quotes from Advice For Young Lawyers - On The Job Deposition Training:

You don't have to rephrase a question in response to an objection.

I did this dozens of times in a two-hour period. At lunch, one of the grizzled old Sacramento P.I. defense attorneys grabbed me around the shoulders so hard I felt like I might break.

"Just wait for the answer," he whispered in my ear. "You don't need to re-phrase the question. If the witness doesn't answer, ask the court reporter to read it back. Say, "do you have the question in mind? Yes? Would you answer it please?'"

I fell all over myself thanking this kind man who growled in response, "I just wanna get outta here before Christmas."

The court reporter doesn't really "strike" anything from the record.

This is someone else's painful story. I was defending a deposition that was obviously the examiner's first time. Every time he rephrased a question mid-phrase, he'd turn to the court reporter and say, "strike that."

Then he waited for her to do something. When she didn't, a confused look would cross his face and he'd return to his questioning. He must have done this a dozen times during the first hour.

Each time, the reporter just smiled that inscrutable court reporter smile, benevolent, knowing and, as I thought during most of my first year of practice, thinking, "what an idiot!"

After several of these lengthy pauses, the reporter took pity on the poor attorney, put her hand gently on his arm and whispered, sotto voce, "I'll explain at the break."

There is no usual stipulation.

At the end of the many depositions I'd seen before I first took my own, I watched attorneys look across the conference table and ask, "the usual stipulations?"

So that's what I did in my first deposition.

"The usual stipulations counsel?"

Defense counsel eyed me with the admixture of pity and contempt seasoned lawyers reserve for new

admittees. This is the moment during which they decide whether to bat you around the deposition room like a cat toy or exercise mercy.

"Why don't you put the usual stipulation on the record, counsel," he said, choosing option no. 1. Not a question. A declarative sentence. An injunction. A challenge.

Even then, a terrified newbie, I wasn't entirely a fool. Never underestimate the power of youth and femininity. If I could have batted my eyelashes I would have.

What I did say, sweetly and with great deference, was this, "No, please. You know them far better than I. I'll let you put them on the record."

Score one for the first year attorney, who then went back to her boss to ask what the %$^# the usual stipulaitons were.


Here's the good news.

When you begin a deposition, it's best to know nothing and ask innocent sounding questions about everything.

If you're not yet in to hour three of the deposition, all your questions should begin with one of the following words: who, what, where, when, why and how, after which you can coast along for quite some time with "and then what happened?" and "what happened next?" You can then tie the ribbon with a bow by asking "do you recall anything else whatsoever that happened during, i.e., during that first round of skating?"

If you are asking "did you" questions ("did you see the plaintiff skating when you first went on the floor?" instead of "what did you see when you arrived at the rink?") you'll either get no useful answers or, worse, answers that suggest responsive testimony but aren't.

Here's the classic first year attorney deposition mistake.

"Did you and your brother take Joan to the country club on the first of June?"


What you won't know is that your witness went alone to the country club on the second of June and met Gladys who then introduced your witness to Shelly who drove him to Beverly Hills to meet Joan at her father's house on Rodeo Drive.

How do you get that testimony? You ask open ended questions.

Do you know June? When did you first meet her? Where did you first meet her? Was anyone else there at the time? How did you get there? Where had you been before that? Then what happened.

Sooooooooooooooooooo much easier.

In the next "Young Lawyers" post, I'll teach you how to authenticate documents and establish the business records exception to the hearsay rule during a deposition. 90% of attorneys at all levels regularly fail to get this one right. You will be among the 10% and the most competent first year lawyer in the country.

From Ms. Pynchon's post, Using Documents At Deposition:

Nothing throws more fear into the heart of a young litigator than using documents at a deposition.

Here's the good news. It's easy if you know the rules and follow the steps.

Here are the steps.

Mark them
Authenticate them
Lay the foundation for the business records exception to the hearsay rule
Lay the foundation for any available hearsay exception for hearsay statements contained in the business record itself;
Question the witness about the documents
to refresh his/her recollection
to impeach his/her testimony
to obtain an explanation of the meaning of language contained in them
to forward your case and tell your client's story
Feel free to bring "cheat sheets" with you to the deposition, remembering that you can rarely save your face and your ass at the same time.


Scratch an exhibit number on the document (or post-it) if it hasn't previously been marked
Hand copies to opposing counsel and to the court reporter
Say, "the Court Reporter will mark as Exhibit Q, correspondence from X to Y dated June 16, 2003, carrying Bates Stamp number 325490."
Pause as the reporter affixes an exhibit number to the document and hands it to the witness
Say to the witness, "do you now have exhibit Q before you?"

Q. "Please identify Exhibit Q for the record."

A. "It's a letter I wrote to Mr. Jones."

Q. "Is that your signature at the bottom of the second page?"

A. "Yes it is."

Q. Is this a true and correct copy of the letter you wrote to Mr. Jones on such and such a date?

A. Yes, it is.


A. "It's a letter I received from Mr. Green."

Q. "Is that Mr. Green's signature on page three of Ex. Q?"

A. "Yes."

Q. "How are you able to recognize it?"

A. "Because I . . . corresponded with him regularly or I've seen him sign his name on several occasions and I recognize this to be his signature."

Q. "Is this a true and correct copy of a letter from Mr. Green that you received on or about such and such a date?"

A. "Yes it is."


Q. You were employed by ABC Company in 2002?

A. Yes I was.

Q. The Court reporter has marked and placed before you Exhibit Y, carrying Bates Stamp range 20056-98. Can you identify Ex. Y for the record.

A. Yes. It appears to be a copy of ABC Company's ledger book.

Q. What is the function of the ledger book?

A. We use it to record all of our sales and payments.

Q. Are the entries in Ex. Y made at or near the time of the recorded sales and payments.

A. Yes

Q. Are the entries made as part of the regular business of ABC Co?

A. Yes.

Q. Is Ex. Y, the ledger book, kept in the ordinary course of ABC's business?

A. Yes.

Q. How is it that you're familiar with the ledger book?

A. "It's prepared . . . . by me (or under my supervision)" or "as part of my job duties, I review the ledger on a monthly basis" or "I've occasionally seen the ledger and am aware that it is maintained by Mr. Brown, who works in the accounting department" or any other way in which the witness is familiar with the document.

You've now accomplished that which, I'm afraid to say, 90% of the attorneys taking depositions fail to accomplish every day. If you don't get any other useful testimony from this witness, you will have created a record that will permit you to use these documents as evidence in summary judgment motions and at trial.

We will cover in a subsequent post the following two steps -- laying the foundation for hearsay exceptions to hearsay statements contained in business records and using the document itself to forward your case.

From Deposition: Hearsay In Business Records:

No, just because it's in a business record doesn't mean everything that record says can come into evidence.

Single hearsay

Ledger says employee Jones was paid $500 in cash on June 5, 2005.

Double hearsay

Note in employer's file (maintained in the regular course of business & brought within exception to hearsay rule) says "Darlene says she paid employee Jones $500 in cash on June 5, 2005."

Why does double hearsay matter in a deposition?

Because if you don't know its double hearsay, you might not track down "Darlene" or find another way to prove that employee Jones was paid $500 in cash on June 5, 2005.