PREPARING FOR THE DEPOSITION
1. Setting the deposition
2. Deposition notice and subpoenas
3. Preparing questions for the deposition
When setting a deposition, it is generally done by agreement between the parties as to the 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. If the person being deposed is your client, a letter should be sent to him or her.
When coordinating the time and place of the deposition with the opposing party, clarify 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. Consider providing refreshments such as coffee, ice, and water.
Note:
Paralegals cannot ask questions of the witness at a deposition. They can, however, attend and take notes, make suggestions to the attorney, and generally assist in the deposition process.
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 practice should also apply to people called to be witnesses 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.
To draft questions, use the following:
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 in the current litigation? 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.
When a paralegal drafts questions for the attorney to use at the deposition, she or he should not take it personally if the attorney makes significant changes to the list. The paralegal eliminates the time consuming step of the first draft that the attorney would have to create for himself or herself if the paralegal was not available.
DEPOSITION FOLLOW-UP
The court reporter will generally provide the deposing party with either a copy of the transcript, a computer disk containing the transcript, or both. The original transcript should be sent to the witness who was deposed. The deponent will then be required to read the transcript, make any necessary changes or corrections, and sign the transcript before a notary public. All parties involved should receive copies of the transcript with changes and corrections by the witness. Note that the witness may change any of his or her testimony at this point without penalty of perjury. For lengthy deposition transcripts, there are two mechanisms that will help the attorney and paralegal access the document with greater ease. These are the deposition index, and the deposition summary, also referred to as a deposition digest.
The deposition index simply provides an alphabetical listing, A through Z, of subject matter contained within the transcript and the pages on which those subject matters appear. The good news for the paralegal is that the job of creating a deposition index has largely become a matter of software. In fact, in most cases the index will be provided along with the transcript by the court reporter.
A Deposition Index is usually created by software and provided by the transcriber. A Deposition Summary, or Digest, needs to impart the heart of the deposition.
A deposition summary is a reduced, or digested, version of a deposition transcript. There are three goals when summarizing a transcript:
1. Relate relevant material
2. Don’t alter the context of the material
3. Avoid editorializing in the summary
1. Relate relevant material
When deciding what information to impart to the attorney within the summary, ask yourself whether a specific piece of information is part of the overall picture of the litigation. Is it something that might affect an attorney’s decision on a specific matter? If yes, it is probably relevant and the paralegal should include the information the summary.
2. Don’t alter the context of the material
If a witness states “We killed them,” that sounds like an admission to murder. But what if the question was “How did your football team play against the Raiders?” Obviously, the answer was taken out of context. While this is an exaggerated example, the paralegal should impart the spirit of the question (as well as the response of the witness) within the summary.
3. Avoid editorializing in the summary
It is difficult not to develop opinions and prejudices (either for or against) regarding a witness who has been deposed. The paralegal needs to maintain a neutral attitude when reading the deposition and summarizing the material. Otherwise, an inaccurate reflection of the transcript may be imparted.
One more hint. Don’t restate the question in the summary. Only restate the information obtained from the response to the questions.
There are two ways to summarize a transcript.
1. Topical Summary
2. Page-by-Page Summary
A topical summary excerpts a portion of the transcript that deals with one specific topic and summarizes that material. The portion being summarized may be just a couple of lines, or several pages.
Example of a Topical Summary:
Example of a Page by Page Summary:
Note
Accuracy is not an option in summarizing depositions. It is a necessity.
Whichever form of deposition summarizing a paralegal chooses, the goal is always consistent: provide the attorney with a more manageable means of accessing the deposition transcript without losing relevant information.
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