Deposition Guidelines
Depositions are oral questions posed to a witness (sometimes a party) under oath, very often in an attorney’s office, and usually with both attorneys present. A court reporter will transcribe the testimony verbatim. The testimony is just as valid and binding as though it had been delivered in court, and since it is given under oath, to lie in a deposition is to commit perjury.
A paralegal cannot ask questions during a deposition. He or she may attend, may make suggestions to the attorney, and may even offer to the attorney possible questions that should be asked of the witness. However, it is the attorney who must actually ask the questions. For the paralegal to do so would constitute unauthorized practice of law.
Even though the paralegal cannot conduct the deposition, she or he may be intimately involved in the deposition process both before and after the actual testimony takes place.
Duties of a paralegal prior to a deposition include:
1. Setting the deposition
2. Deposition notice and subpoenas
3. Preparing questions for the deposition
When setting a deposition, it is usually done by agreement between the parties as to time and place. The paralegal may need to coordinate between the schedules of his or her own attorney, the individual to be deposed, and the opposing counsel. Be polite and to the point when consulting with the secretary or attorney for the other side. It may be the responsibility of the paralegal to calendar the scheduled date of the deposition. Either the paralegal or the secretary should send a follow-up letter to the opposing counsel confirming the date, time, and place of the deposition. A letter should also be sent to a person being deposed.
When coordinating the time and place of the deposition with the opposing party, it should be made clear which party is arranging for the court reporter. Usually, the party initiating the deposition becomes responsible for the hiring and compensation of the court reporter.
The paralegal should ask the attorney or other paralegals whether there are any specific reporters usually utilized by the firm. If not, use the yellow pages. If the deposition is not at the law office, the party initiating the deposition must make arrangements and pay for appropriate accommodations. The room must be of adequate size to accommodate the attorneys, paralegals, witness, and court reporter. Such things as coffee, ice, and water should be considered.
The notice of deposition should be sent well in advance of the deposition and filed with the court. In addition, it is good practice to subpoena the witness who is to be deposed, even if the witness has agreed to appear. (This also applies to witnesses to be called to the witness stand during the trial. The court will usually allow an absent witness to be called at a later date only if the attorney can establish that the witness was subpoenaed.) A subpoena duces tecum should be issued if the witness is being asked to present documents at the deposition.
A paralegal can help the attorney in preparing for the deposition by drafting a set of potential questions to be asked at the deposition. There are many places to begin the drafting process:
1. The pleadings
2. Discovery documents and responses
3. Previous depositions and discovery
4. Research sources
1. The pleadings
If a paralegal is to be involved in the deposition process, it is imperative that the paralegal be thoroughly familiar with the case. While reviewing the client file, take note of any potential information, or lack thereof, which could be clarified during the questioning of the witness. The pleadings, especially the complaint, answer, and counterclaim, should be studied for potential aspects of interrogation.
2. Discovery documents and responses
Why spend time creating questions and strategies if those questions and strategies already exist? Much of the information being sought has been requested in the various discovery documents. Pay particular attention to interrogatories and requests for admissions and their responses.
3. Previous depositions and discovery
Law firms also have a source of information that is often under-utilized. Case files from previous clients often have documents, including deposition questions and discovery documents, which should be researched and developed for current use.
4. Research sources
The law library also contains sources for questions and strategies. Am. Jur. Pleading and Practice Forms and Am. Jur. Proof of Facts are excellent sources of information in developing deposition questions.