![Page 1: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/1.jpg)
1
Basic Skills for New Attorneys
Depositions
April 2009 Springfield, IL
Eric Parker
Stotis & Baird Chartered 200 W. Jackson Blvd.
Suite 1050 Chicago, Illinois 60606
312-461-1000 [email protected] www.stotisandbaird.com
![Page 2: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/2.jpg)
2
I. Statutory Bases
The statutory rules governing the taking of depositions are not lengthy. It is worth the
time to take a few moments to review the rules. The basic statutes covering depositions are as
follows:
• IL Sup Ct. Rule 202 • IL Sup Ct. Rule 203 • IL Sup Ct. Rule 204 • IL Sup Ct. Rule 205 • IL Sup Ct. Rule 206 • IL Sup Ct. Rule 207 • IL Sup Ct. Rule 208 • IL Sup Ct. Rule 209 • IL Sup Ct. Rule 211 • IL Sup Ct Rule 212 • IL Sup Ct Rule 219 • 735 ILCS 5/2-1003
II. Depositions Basics
A. Types of Depositions
Illinois law recognizes two types of depositions – Discovery and Evidence. A discovery
deposition is used to obtain information about the case under oath. The scope of a discovery
deposition is the same as for all discovery – that it must be calculated to lead to discoverable
information. The scope is much broader than what may be asked at trial. The testimony elicited
from a discovery deposition may not generally be admitted directly into evidence at trial. 1 If a
witness testifies inconsistently with his discovery deposition, however, the transcript can be used
to impeach the witness at trial.
1 Discovery depositions taken in Federal Court may be used in evidence, however, Federal Procedure is beyond the scope of this presentation.
![Page 3: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/3.jpg)
3
An evidence deposition is a substitute for trial testimony. After the judge has ruled upon
any objections, the transcript of an evidence deposition will be read directly to the jury. As a
result, it is subject to all of the same objections that would be applicable at trial. Often, evidence
depositions are videotaped in order to make the presentation more interesting for the jury. The
rules permit videotaping any deposition so long as the deposition notice specifies that it will be
videotaped. Evidence depositions are only allowed to be used at trial in place of live testimony if
certain conditions are met. In practice, they are primarily used for out of state witnesses and
medical experts.
B. Setting Up The Deposition
The deposition of a party may be scheduled simply by sending notice to the opposing
attorney. It is their obligation to produce the witness at the specified time and place. Taking the
deposition of a non-party requires a subpoena, or the agreement of the witness. In all cases, it is
preferable to try to schedule the location and time of the deposition by agreement. A simple
phone call can save a lot of frustration.
The deposition must take place in the county where the action is pending, (in the case of a
party to the lawsuit) or the county where the deponent resides (in the case of a non-party
witness). In the case of a subpoena deposition, it is necessary to forward a check for the witness
fee and mileage to the site of the deposition.
Depositions must be taken before a notary – typically a court reporter. The witness will
be sworn in at the beginning of the deposition and therefore, the court reporter must be present
with the witness. Although the rules do not specifically provide for depositions over the
telephone, they are commonly agreed upon by the parties. When agreed upon, however, the
![Page 4: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/4.jpg)
4
party scheduling the deposition must ensure that a court reporter is present with the witness to
administer the oath.
C. Cost Issues
The person who requests the deposition has the obligation to pay any subpoena fee for
the witness and to pay the appearance fee of the court reporter. Typically, the court reporter’s
appearance fee is about $125.00. At the end of the deposition, the court reporter will ask if
anybody wants to order the transcript. If somebody orders an “original” the reporter will ask if
anybody wants a “copy.” The original typically costs about twice as much as a copy. As a
result, it is usually the person who would need the deposition at trial who pays for the original
(i.e. Plaintiff orders Defendant’s deposition and Defendant orders Plaintiff’s).
D. Experts
Cost issues in expert depositions are more substantial. A physician expert is entitled to
be paid a reasonable fee for their time giving a deposition. It is not unusual for a busy
Orthopedist, for example, to charge $750/ hour for their time. With respect to non-retained
experts, (such as a Plaintiff’s treating physician), the burden to pay their hourly rate falls on the
party requesting the deposition. Retained experts (such as an independent medical examiner),
must be paid by the party who retained them. In a typical example, the Defense may hire an
independent medical examiner to examine the Plaintiff and testify at trial about the injuries.
When the Plaintiff schedules the doctor’s discovery deposition, the Defendant must pay the
expert’s hourly rate.
![Page 5: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/5.jpg)
5
If a doctor or expert seeks an outrageous hourly rate, it is incumbent upon the requesting
party to file a motion seeking a reduction. Whether this is worthwhile depends upon the
importance of the witness and the extent to which the fee is unreasonable.
Depositions of physician experts can only be taken by agreement of the parties and the
physician, or pursuant to subpoena issued upon order of the court. The vast majority of the time,
these depositions are scheduled by agreement. It is worthwhile to know, however, that court
approval can be required if the parties or the doctor are not amenable to an agreement.
E. Ground Rules
Absent approval by the court, depositions are limited to three hours. In complex cases,
courts are receptive to motions to extend the time. In simple cases, an extension is rarely
necessary or granted. Any person may request a break during a deposition, however, the
questioning party has a right to have a pending question answered before the break.
The first thing to happen in the deposition is that the court reporter will administer the
oath. Thereafter, the questioning attorney will typically make a statement along the following
lines:
Let the record reflect that this is the (discovery / evidence) deposition of Jane Doe, being taken pursuant to (notice / subpoena) and scheduled by agreement of the parties. It is taken pursuant to the Illinois Supreme Court Rules, the Illinois Code of Civil Procedure and the local rules of this judicial circuit.
Often, the questioning attorney will then give the witness a few ground rules before
beginning their questions in order to help create a clean record. This includes things like
reminding the witness not to talk at the same time as the questioner.
![Page 6: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/6.jpg)
6
Any party to the lawsuit and their attorney are allowed to be in the room during the
deposition. Non parties are not allowed to be present for the deposition. Attorneys sometimes
ask to have a non-party present for a deposition (for example a child may be allowed to have a
parent present). Such requests are often agreed upon as long as the non-party is not going to be a
trial witness.
At the end of the deposition, the court reporter will ask if the witness will “waive
signature” or “reserve signature.” If a witness waives signature, it means that they will trust that
the court reporter accurately transcribed their words. If they reserve signature, the witness gets
an opportunity to read the transcript and note any inaccuracies. The witness does not, however,
get to make substantive changes. Customarily, the attorney will answer for a party whom he or
she represents. Non-party witnesses must answer for themselves. If there is any doubt about the
transcription, it is preferable to reserve signature.
F. Objections – Discovery Depositions
In a discovery deposition there are only three generally accepted objections to a question:
1. Form of the question
An attorney may object to the form of a question, so that the questioner may attempt to
correct the form at the time. Form objections include compound questions, vague or ambiguous
questions, etc.
2. Privilege
An attorney can and should object to a question that calls for the client to violate a
privilege. Most typically, the privilege at issue is the attorney-client privilege.
3. Irrelevant and not calculated to lead to anything relevant
![Page 7: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/7.jpg)
7
Irrelevant questions are allowed in discovery depositions. If, however, the question is
grossly irrelevant to the point that it could not even lead to anything relevant, it is objectionable.
The problem with objecting in a deposition is that there is nobody to rule on the
objection. As a result, the attorney must make a decision whether to allow his or her client to
answer or to instruct the client not to answer. Generally, it is advisable to allow your client to
answer over your objection if the matter is inconsequential. If, however, the question calls for
privileged information, or is truly offensive, a refusal to answer is appropriate. An attorney only
has a right instruct their own client not to answer.
In response to a refusal not to answer, many attorneys will ask the court reporter to
“certify the question.” A number of years ago, this was a necessary step before bringing a
motion to compel an answer to the question. It is no longer required.
III. Presenting a Party for a Discovery Deposition
A. Witness Preparation
Presenting a client for a deposition is primarily a question of preparing them to testify.
Once the deposition starts, 90% of the lawyer’s job is done. The following steps are a good
format for preparing the witness to testify:
1. Familiarize them with the process
Clients almost never understand the purpose of a deposition when they arrive at the
office. They are also nervous about the process and on edge. It can help to explain where the
deposition will take place, who will be present and why they must participate. It is reassuring to
some people to know that all of the parties to the lawsuit will eventually have to give a
![Page 8: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/8.jpg)
8
deposition. For nervous clients, it can also help to remind them that they will not be “tricked”
because they are only going to be telling the truth.
The most important thing to get across to the client is how the deposition will be used. In
short, they need to know that their trial testimony will be limited by what they say at the
deposition. At the deposition, if they say that they only hurt their lower back in the car accident,
it will be difficult for them to claim that they also hurt their neck when the case comes to trial.
2. Let them tell you their story
Several years ago a group of researchers determined that police officers were doing a bad
job of interviewing witnesses. The problem was that they interrupted the witnesses frequently, to
get further details. People do a better job of remembering the details if they are allowed to
follow their own natural memory patterns without interruption. As a result, it is best to ask the
client to tell you what happened in as much detail as possible. Thereafter, you can go back and
ask specific questions.
3. Go over difficult questions they will face
Most cases boil down to one or two key events. In a trip and fall case, for example, there
will always be an issue about whether the defect was “open and obvious.” It is best to discuss
these issues with the client before the deposition. Then try asking them the hard questions
yourself to make sure they can handle it. If they can’t give a credible explanation to you, they
certainly won’t do it for your opponent.
4. Review documentary evidence
If a document or a photograph will be a significant issue in the case, you should show
them to the client before the deposition. Especially in premises liability cases, this step is
imperative. The attorneys will almost always ask the party to identify the exact location of the
![Page 9: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/9.jpg)
9
defect in the photograph and mark it with an X or etc. An unprepared client can easily
misidentify the location and cause endless headaches for the attorney.
5. Go through witness preparation checklist
Most attorneys have a list of deposition “rules” for clients to follow. Clients don’t always
remember, or follow them, but it is worth a try. One sample checklist is attached as Appendix B.
B. Producing the party at the deposition
The deposition itself is relatively easy for the attorney. Formally, the only requirement
(in a discovery deposition) is to object to questions that are in improper form, privileged or
wholly irrelevant. Informally, the job of the presenting attorney is to make sure that the client is
understood. Frequently, attorneys can tell when their client does not understand a question.
They may also be able to tell that the client is getting angry, irritable or impatient. These are
times to take a break and give them a chance to regroup. Giving the client an example of how
they are rambling, for example, may help them to stop doing it.
C. “Redirect” questioning
After the questioner has finished asking questions, all of the other attorneys involved in
the case have a chance to ask questions. In larger cases, it is not unusual to go around the table a
couple of times before concluding the deposition. Although attorneys often ask questions of
their own clients, it is seldom a good idea. The obvious reason not to ask questions of your
client is that you could just as easily ask them when you are no longer on the record with the
other attorneys. It is a good idea, however, to ask follow up questions in two limited
circumstances:
1. Your client has misstated something
![Page 10: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/10.jpg)
10
When this occurs, the misstatement may be used against them at trial. As a result, it is a
good idea to clarify their answer with further questioning. Do this only if you know they can
correct it.
2. Undisclosed Opinions
Under the current Supreme Court Rules, the failure to disclose certain opinion testimony
can result in that testimony getting barred at trial. If the questioner has failed to elicit an opinion
that you want to use at trial and have not otherwise disclosed, it can be wise to ask sufficient
questions to disclose it.
IV. Taking the Deposition of a Party or Witness
Taking the deposition of a party or important witness is one of the most important aspects
of discovery. It requires a good knowledge of the case and the law, but also a fair amount of
strategy. For lawyers who expect to be taking depositions frequently, it is a good idea to get a
good book about deposition taking. One such book is “The Effective Deposition” by Malone.
Many others are commercially available. Attending seminars on deposition technique can also
be helpful. The best way to learn good deposition technique, however, is to attend depositions
taken by good lawyers. Early in your career you may be able to convince lawyers in your office
to let you come along to depositions. As you progress, presenting clients for a deposition can
provide a useful opportunity to learn skills.
The following are some general guidelines that may also help:
A. Set Deposition Goals
The easiest and most overlooked aspect of taking depositions is setting goals for the
outcome. With each witness, there are two or three things that are important to the case. You
should know what those things are and how you expect to obtain that testimony. That is your
![Page 11: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/11.jpg)
11
goal. You may learn other helpful facts during the deposition, but you should not leave the room
until you have attempted to meet those goals. If you are not sure what you want to get from the
witness, you are not sufficiently prepared. Review the prima facie case for the cause of action,
and determine what is necessary.
B. Prepare for the Deposition
There is no substitute for good preparation. Particularly with respect to expert
depositions, it is imperative to know the circumstances before the deposition. If you use the
deposition to learn what a herniated disc is and how it could affect someone, you are not going to
do a good job of cross examining an orthopedist about the cause of the herniation.
It is not necessary (or even advisable) to let the deponent know how much you know
about the case. Being prepared, however, will allow you to get more out of the deposition.
C. Prepare your Questions
More experienced attorneys will often joke about inexperienced lawyers who write out
their deposition questions in advance. Far worse, however, is to take a rambling deposition that
misses all of the important facts. It is good to listen to the answers and adapt your questioning
accordingly. Simply reading the questions without regard to the answers is not sufficient. It is a
rare attorney, however, that can remember to ask everything important without notes. Writing
out the questions also forces you to prepare. It may also help you to see that the order of the
questions is flawed. Some attorneys keep deposition questions in a form on the computer and
revise it based on the specifics of the particular case. A copy of one such form is attached as
Appendix A.
![Page 12: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/12.jpg)
12
D. Strategy Considerations
There are literally hundreds of strategy considerations which may come into play in a
deposition. Much of the advice is contradictory. Here are a few considerations that are widely
considered to be sound advice:
1. Insist Upon an Answer
Probably the biggest mistake made by inexperienced attorneys is to fail to get an answer
to the question they asked. Some witnesses ramble. Other witnesses are deliberately evasive.
Some answer a question other than the one which is asked. It is incumbent upon the questioner
to go back and ask the question again, as many times as necessary until they get an answer.
2. Use Good Questioning Form
The purpose of a deposition is to obtain short statements to impeach the witness with at
trial. It is very difficult to impeach a witness with a poorly worded question, or a poorly worded
answer. For that reason, it is best to slow down your questioning and ask simple, direct
questions. When the witness answers with a long rambling answer, you have a similar problem.
You can correct this by re-asking the question until you get a simple answer.
Ex. Q. What happened next?
A. I turned into the intersection and saw my friend on the side of the road and then the car hit me.
Q. Did you apply the brakes? A. The whole thing happened so fast, I just was traveling at a normal rate of speed
and the next thing I know there’s a car smashing into me and my head was killing me…
Q. You did not apply the brakes at any time, correct? A. Correct.
At trial, if the witness claimed to have applied the brakes, the first two answers would be
difficult to use to impeach him. The last question and answer, however, is simple and direct.
![Page 13: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/13.jpg)
13
Remember that you can ask leading questions at a deposition. When questioning an
adverse witness, it is often a good idea to use leading questions. If an attorney objects to the use
of leading questions, do not let it deter you. Even an attorney who objects on this basis will
usually not instruct the client not to answer for that reason. As a result, you can continue to ask
them in leading form.
3. Don’t get dragged into pointless arguments
The most unnerving part of taking depositions for inexperienced lawyers is dealing with
an unruly opposing counsel. There are a small number of attorneys who object and complain
and argue, just to make it difficult for the questioner. It can help to remember that there are only
two options for the attorney presenting the witness: they can object and allow the client to
answer, or they can object and instruct the client not to answer. It is your duty to find out which
they will chose. If they allow them to answer, the problem is solved. If they refuse, on the
record, you can ask a judge to review it later. There is no need for any further argument.
Engaging in a lengthy debate does not improve the record, it simply causes your client to become
more anxious.
For most regular lawyers, frustrating arguments can be avoided by simply being polite.
4. It is not necessary to “win” the deposition
Sometimes it is better if the witness does not realize that you got something good during the
deposition. In some circumstances you can spread key questions throughout the deposition, so
that they do not realize the point of your questions. It may not look impressive during the
deposition, in fact, the witness may leave feeling like it was no big deal. The real goal, however,
![Page 14: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/14.jpg)
14
is to succeed at trial. Another technique that can help is to always have another question ready.
If the witness says something helpful, ask another question immediately. A sharp witness will
sometimes realize that they have given you too much and begin to qualify their statement. If you
have already moved on to the next question, this will usually not happen.
5. Slice the Salami Thin
When you get to the critical issues in the deposition, it is a good idea to ask very narrowly
defined questions. It is also possible to ask an overview question and then go back and ask the
detail questions. Witnesses are more likely to gloss over their mistakes in response to a general
question. It is also more likely to generate useful cross examination because each fact will be
nicely isolated in the transcript.
V. Expert Depositions
Expert depositions are the most problematic for new lawyers. Fortunately, the process has
become much easier. Thanks to the internet, it is now possible to develop a basic knowledge
about almost anything in a reasonably short period of time. After a number of years of practice,
certain categories of expert witnesses will become easy. For example, an experienced personal
injury attorney will need little preparation for the deposition of an orthopedist. In the early years,
however, working with an experienced attorney can help a great deal.
One thing that is essential to all expert depositions is preparation. It is not possible to know
as much as the witness in the field of their expertise. The lawyer should strive, however, to
know as much as the witness on the particular issue involved. For example, the lawyer cannot
know as much about architecture generally as an architect. They can, however, become as
knowledgeable as the architect on the issue of whether the building code requires safety railing
for staircases over 7 feet in height.
![Page 15: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/15.jpg)
15
Sometimes, a knowledge deficit can be overcome by research. If you have a retained expert
in the case, you might consult with them about what questions you should be asking. It may also
be helpful to schedule depositions of less important players first. In a paramedic malpractice
case, for example, the lawyer might start by taking depositions of paramedics who were not
directly involved in the Plaintiff’s treatment. Through them, the lawyer can learn the applicable
standards, rules and practices. After obtaining and learning the standards, they can then proceed
with depositions of the key players.
There are two major categories of expert witnesses: The non-retained expert witness (ILSCR
213(f)(2)) and the retained expert witness (ILSCR 213(f)(3)). A typical example of a non-
retained expert is a doctor who treated a personal injury victim and may testify about the
treatment he provided. A retained expert is someone hired by an attorney in the case to provide
testimony about a particular topic. They can be independent medical examiners, architects,
premises safety experts, engineers or just about anything else. Each type of deposition has its
own challenges.
A. Non-Retained Experts
1. Presenting a Non-Retained Expert for Deposition
The main thing to remember about non-retained experts is that you do not represent them.
They are not obligated to talk to you. More importantly, the conversations that you have with
them are not privileged. Lawyers can and do ask about the substance of any conversation that
they have with you.
Nevertheless, it is worth the effort to try to talk to them. Because these experts are not
directly involved in your case, they may not be well prepared for the questions they will face.
They have little motivation to prepare for the deposition by reviewing records or performing
![Page 16: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/16.jpg)
16
research. At a minimum it is helpful to meet with them, tell them the key issues in the case, and
point out key records. If the witness is more important, it may be worthwhile to schedule a
meeting several weeks in advance of their deposition. In some cases, you may even offer to pay
them their hourly rate to read the records in detail before their deposition.
Some experts also need to be reminded of the burden of proof. Under Illinois law, a
proposition must be “more likely true than not true.” With scientific experts, in particular, they
are accustomed to addressing things in terms of scientific certainty. The difference can be
important.
2. Taking the Deposition of a Non-Retained Expert
There is no single outline for the deposition of a non-retained expert. The questions and
concerns vary widely from deposition to deposition. Within specific practice areas, however,
there are common types of depositions. The best way to learn how to take these depositions is to
work with an experienced attorney to prepare. There are some general guidelines that may help,
however.
a. Foundation Necessary to Give Opinions
The foundation required for an expert witness to testify about any opinion is that they
hold that opinion “To reasonable degree of certainty” in their field of expertise. For example, in
the deposition of an orthopedist, the attorney will typically ask “Based upon a reasonable degree
of medical certainty, was the back injury caused by the collision on 11/2/06?” If the attorney
asks the question without this qualifying language, the opposing attorney may object that the
question lacks foundation. This distinction may not be critical in a discovery deposition, but in
an evidence deposition, it is very important. Sometimes it is possible to minimize the need for
this by asking the expert at the beginning of the deposition if he or she can agree that all of their
![Page 17: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/17.jpg)
17
opinions will be based upon a reasonable degree of [medical] certainty. If the opposing attorney
objects to this blanket agreement, however, the questioner must be prepared to phrase each
opinion question appropriately.
b. Be Prepared to Utilize Necessary Records
The expert often has not reviewed the records. Frequently, they have not even organized
the relevant records. For this reason, the attorney must be prepared to direct the witness to
specific items in the records – and even provide them with a copy if necessary. A disorganized
lawyer will waste time and lose the chance to inquire about important issues.
c. Credentials
In almost every expert deposition, it will be important to investigate the expert’s
credentials. Most experts will be able to provide a professional resume before the deposition
(doctors call this a Curriculum Vitae). The goal of any such questioning is to make sure that the
witness is qualified to give the opinions that they hold in the case. It can also be helpful in
determining that others may be more qualified to talk about a particular issue.
d. Use the Deposition to Find Other Cross Examination Materials
There are dozens of pieces of cross examination that you may be able to obtain after the
deposition based upon the answers they provide. Here are a few examples:
ii. Find out if the witness has given depositions in other cases.
iii. See if they will agree that certain texts are authoritative in their field of
expertise.
iii. Find out if they have published any articles on the topic at issue in your
case.
![Page 18: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/18.jpg)
18
After the deposition is over, you can review these materials and determine if there is
anything that contradicts their deposition testimony.
B. Retained Experts
The deposition of a retained expert is probably the most complicated deposition for an
attorney to take. An example of a retained expert is a doctor hired by the Plaintiff’s attorney to
testify that the Defendant doctor committed malpractice. These witnesses are accustomed to
testifying and answering tough questions. They are extremely well versed on the topic that they
will testify about. They are not likely to be shaken from their opinions about the case.
Therefore, the goals of such a deposition are different.
Primarily, the attorney in this type of deposition is seeking to gain information that
accomplishes one of the following goals:
1. Challenges the basis of their opinions
2. Challenges their credentials to give these opinions
3. Exposes their biases
The good news about experts is that it is often possible to obtain substantial information
about them before the deposition. Because these experts are deposed often, it is usually possible
to obtain copies of prior depositions of these witnesses. Even an inexperienced attorney can end
up taking a great deposition of an expert after reading the depositions that several experienced
attorneys have taken of that same expert.
Bias is often easy to establish as well. Most retained experts are well paid for their
efforts. Many of them make a substantial portion of their income each year by testifying for
Defendants or Plaintiffs. Relatively few of them work on both sides of the fence. Uncovering
these biases can be invaluable.
![Page 19: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/19.jpg)
19
C. Don’t Forget What they Did Not Say
It is common for attorneys to go through the expert’s report and question them about each
item in the report or the records. This can overlook a very important angle – what is not in the
report. Imagine an architect who is testifying in a negligent design case. The expert writes a
report stating that the building was designed and built in conformity with all applicable building
codes. Specifically, the expert opines that the railings were the exact height required by the
building code and of sufficient strength, etc. An attorney who comes in and tries to challenge the
expert on the building code is not likely to gain much ground. What if, however, the staircase
complies with the local building code, but it does not comply with the Americans with
Disabilities Act? Or what if the railing that was installed does not meet the ANSI standard for
railings? If the attorney limits the questions only to the topics addressed in the report, they could
miss a great opportunity.
![Page 20: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/20.jpg)
20
APPENDIX A
Deposition of Defendant Motor Vehicle Accident
DOA: At:
I. Oath / Statement / Directions II. Preliminary Questions
• Name/Maiden Name/Alias • Address (for 10 years)
• Date of Birth • Social Security Number
• Highest Level of Education
• Employment History
i. Current Employer
-Position -How long at job
ii. Employer at Time of Accident -Position -Shift / Hours per week -Work anywhere else at same time -How long at job -Why did you leave
VI. Bias / Impeachment
• Know any of the parties involved in this case? • Friends? • Have you been convicted of a felony in the past ten years? • Have you been convicted of a false statement crime at any time?
(Perjury/Forgery/Theft)
![Page 21: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/21.jpg)
21
III. Pre-Accident Questions Distractions What were you doing in the car in the moments before the accident? On a Cellular phone? -Have one at time? -Who was the carrier? -What was the phone number? -In your name? Radio on in car? Windows up or down? Anyone in car with you? How many? Who? Conversation? Corrective Lenses
Were you wearing corrective lenses at the time of the accident?
-Do you ever wear corrective lenses? (glasses or contacts) -Have any vision problems? (what problem) -Required to wear glasses on your drivers license? -Last eye exam before accident? (where / when)
Medical Conditions / Intoxication
Take any prescription medications on date of accident?
-Which?
Take any non prescription drugs on DOA? Drink any alcohol within 12 hours before accident? At the time of this accident, did you have any medical condition that prevented you from driving?
Describe Car What type of car were you driving? Did you own that car? Had you every driven that car before?
![Page 22: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/22.jpg)
22
What was the mechanical condition of the car at that time? Conditions at TOA Weather? Roadway condition? Visibility? Did the wearther contribute to the accident? Light or dark? (roadway lighted?) Route / Time frame What day of the week did that accident happen? (weekend vs. weekday) Where were you going? What time were you supposed to get there? Where were you coming from? When did you leave? What route do you take from ____ to ____? Where did accident happen? What time did the accident occur? Describe Roadway How many lanes on _________ Rd.? Traffic light? Stop Sign? Etc. -How far when you first saw? -Color at that time? -Ever change to a different color? Anything blocking view? What was the speed limit in that area?
![Page 23: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/23.jpg)
23
Did you have time to apply the brakes before impact? Your speed before applying brakes? Your speed at time of impact?
IV. Accident Information When did you first see the other vehicle? -Time (how many seconds) -Distance (how many feet) -Anything obstructing your view? (Cars/trees/etc.) -How fast was that car moving? -Could you see what the other driver was doing in his/her car before impact? Precise location of point of impact -On roadway (in relation to landmarks and streets) -On Car (what part of car did x hit) Avoidance attempts: -Did you swerve? (Which way) -Honk? (Other car?) -Apply Brakes? (Did other car?) Describe Impact -Hard, Moderate or Light? -Did car move after it was hit? -How far? -Where did the cars wind up? Were you injured as a result of the accident? Damage to car: -Damaged? -Repaired? (By whom/cost) -Totaled? (Who estimated/evaluated) Observations after accident: -Did you get out of the car after the accident? -Look at damage to cars? -Did Plaintiff get out? -Have any idea if Plaintiff was injured? Did you talk to anybody after the accident?
![Page 24: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/24.jpg)
24
Who (police/other drivers/witnesses) What was said during that conversation? Did Police Officer take stmt? Overhear conversations of others? Have you talked to Plaintiff or witnesses since that date? -When? What said? -Traffic court? How did Plaintiff leave the scene of the accident? -Who called ambulance? -How long before ambulance arrived? -Conversations with ambulance personnel? Were you ticketed? -How did you plead to ticket? -Conversations in Court?
![Page 25: Depositions - ISBAonlinecle.isba.org/EdutechResources/resources//bytopicid/13367/... · 2 I. Statutory Bases The statutory rules governing the taking of depositions are not lengthy](https://reader034.vdocuments.us/reader034/viewer/2022042605/5a7879c07f8b9ab8768b92b7/html5/thumbnails/25.jpg)
25
APPENDIX B
INSTRUCTIONS TO WITNESS FOR DEPOSITION
A. TELL THE TRUTH B. WAIT TWO SECONDS BEFORE ANSWERING THE
QUESTION.
C. ANSWER ALL QUESTIONS OUT LOUD
D. UNDERSTAND THE QUESTION OR ASK
E. ANSWER ONLY THE QUESTION
F. DO NOT GUESS OR SPECULATE
G. “DON’T KNOW” OR “DON’T REMEMBER?” – SAY SO
H. DON’T LOOK TO ME FOR SIGNALS
I. NOTHING IN THE DEPOSITION IS OFF THE RECORD
J. THE OTHER ATTORNEY IS TRYING TO ASSESS WHAT TYPE OF WITNESS YOU WILL MAKE AT TRIAL
K. DO NOT LET THE ATTORNEY INFLUENCE YOUR
ANSWERS
L. BE CAREFUL ABOUT ESTIMATING SPEEDS AND DISTANCES
M. NEVER USE HUMOR OR SARCASM IN YOUR ANSWER
N. IF YOU MAKE A MISTAKE – CORRECT IT ON THE
RECORD AS SOON AS YOU REALIZE YOU MADE IT.