Editor’s Note:  Ok, we know, this is waaaay to long for a blog post.  But this is just too good not to share!  In our continuing effort to avoid re-inventing the wheel, getting the easy stuff down to checklists, and helping us lawyers impress our virtually-impossible-to-impress clients, we offer our most recent post: everything you need (actually, must) to do to get ready to defend a deposition (including the critical steps to take to prepare your witness).  We have previously posted in our A++ Forms and Resources (TM), great checklists on the timeline of all steps to prepare to take the perfect deposition, the script you should always have in your lit bag to make a perfect record for a no-show deposition (it happens!), and the super-comprehensive list of opening questions to get to everything a witness could know.  All of these, and the post below, are available to send to you in Word form so you can integrate them into your own work product.  Just shoot an email to Wendy Godfrey, Leah Fiorenza, or me, and we would be glad to send any of them to you (and they are much better in Word – the blog machine we use here at the Bankruptcy Cave just ain’t really user friendly in preverving spacing, bullets, sub-bullets, etc.).


Part I:           What to Provide the Deponent in Advance of the Preparatory Session

Part II:        Setting Up and Details about the Preparatory Session

Part III:       Key Points for You in the Actual Meeting with the Deponent

Part IV:       30 Things Your Deponent Should Take Away from the Preparatory Session

Part V:        The Deposition Itself – Breaks

Part VI:       The Deposition Itself – Objections

Part VII:     The Deposition Itself – Rehabilitating the Deponent and Correcting the Record


Part I: What to Provide the Deponent in Advance of the Preparatory Session

Should You Provide Documents to the Deponent?

  • If a document is used to refresh a witness’ recollection, that document is discoverable; opposing counsel can and will see it, and ask about it.[1]


  • If a summary chart is prepared, that also is discoverable.


  • In general, assume that everything you show a deponent to prepare for the deposition is discoverable, and so if in doubt, give the deponent nothing (except in a Rule 30(b)(6) deposition – see below).


  • Exception: You should provide the deponent with the complaint, answer, perhaps a motion to dismiss and response – just the key pleadings.


  • Related Issue: Should Witness Be Shown Documents During the Preparation Session?


  • Do you want your witnesses to be “cold?” Or do you want your witness to demonstrate the strengths of the case? We suggest the latter – you will have to decide for your case.


  • Senior executives don’t know everything going on beneath them however, so it is fine for them to be a bit cold, unless they are your key witness.


  • Suggested best practice: if the witness received, sent, or was copied on a relevant document, you should go over it with them so they are ready for questions.


  • Rule 30(b)(6) Depositions:


  • You must produce a knowledgeable witness. It does not have to be an employee – it can be a consultant, or other third party, if that person is the most knowledgeable. “I don’t know” is not acceptable as to a question fairly within the category that witness speaks to. So you must think about all the topics identified, and ask the witness about them in detail, well in advance of the deposition.


  • You can, and should, in a Rule 30(b)(6) deposition, work to get the witness up to speed on their testimonial categories.


  • Often, a separate person is designated as to highly technical or financial issues.


  • Recent Case: Opengate Capital Group LLC v. Thermo Fisher Scientific, 2015 U.S. Dist LEXIS 120022 (D. Del. Sept. 8, 2015) (counsel held liable for sanctions, and new Rule 30(b)(6) deposition ordered, when the witness was knowledgeable about some topics, but the witness did not make inquiry of others in the company that knew the most about those topics).


Part II: Setting Up and Details about the Preparatory Session


  • Make sure that your witness blocks off ample time to meet with you in a place where there will be no interruptions or distractions by other obligations.


  • Allow a lot of time for the prep session: 
  • If the witness is key to the case, the prep session should be 4-8 hours.


  • If the witness has never been deposed before, add two hours to the prep session.


  • In addition, the prep session should not be the full day before the deposition. Your witness is going to leave the session somewhat comfortable, but also somewhat confused, demoralized, and nervous. You may leave the session confused and demoralized too, if the witness tells you things you did not know. Best practice – have the prep session a week before, and then a re-fresh the night before or morning of. 
  • Except for the most seasoned witnesses or the most unimportant witnesses, the prep session can never be the evening before, or the morning of, the deposition. 
  • The witness must be able to give you complete attention for a long as you need. For a complex case, preparing an important witness will easily occupy several hours.


  • During the prep session, cover the following, in addition to the next two sections of this paper:


  • Explain the mechanics of a deposition. This may be the witness’ first time being deposed, or first time involved in the legal system.


  • Explain what a deposition is, who will be present, where people will sit, the court reporter’s role, objections, and the like. (All of this is covered in detail in the next sections.)


  • This is critical to helping the witness to relax.


  • A typical approach for you to take in preparing the witness is as follows (and then go into specifics, as discussed in the next sections):


  • Ask the deponent open-ended questions.


  • Start broad, then get more narrow.


  • Does the deponent understand the key parts of the case? The key factual disputes?


  • Does the deponent understand what is important and what is not?


  • Does the deponent help solidify your theory of the case, or not? (Recall, this is why we suggest that the prep session be a week before – you need time to think about what to do if you are getting ready to put up a witness that is really, really bad for your case.)


  • Don’t suggest alternative testimony – that will be a very bad day for you. You can go through the key elements of the case, and ask them again. But at bottom, their testimony is what it is, and if the deponent changes their story, you will be the one to blame, not them.


  • If the witness struggles, you need to be thinking about your case, a lot.


  • But if the witness simply lacks confidence, you can build them up – explain they are entitled to their side of the story, the client is in the right, and the other side is in the wrong. Show the deponent you are a fighter based on the facts, and your deponent will feel like one too.


  • Group witness preparation?
    • Though convenient, you should never do this. Your opponent will learn this, and call it out as collusion to get everyone on the same page.


  • Showing another transcript to the Deponent? 
  • We advise against it. As with group preparation, your opponent can argue the witness used an outside source to shape his or her testimony. Remember, the deponent can be asked – and has to answer truthfully – what he or she did to prepare for the deposition!



Part III: Key Points for You in the Actual Meeting with the Deponent 

  • Re-Mirandize the Witness


  • Has the deponent produced everything?


  • Notes?


  • Email files?


  • A notebook?


  • Ask the witness if s/he can think of anything else s/he has, had, or has access to, and verify it was produced.


  • If the witness has not produced everything, and this comes out in the deposition, you will have to do the deposition again – probably with you paying for the other side’s fees and costs. Remember, this is why the prep session is a week before – sending the other side a raft of additional documents the deponent just now remembers, the day before the deposition, will be your fault.


  • Don’t forget to ask your client about communications outside the normal course of communication and documents, such as (i) text messages the witness may have sent that are relevant to the dispute, or (ii) posts on Facebook, Twitter, any other social media that pertain. If your client has any texts or posts about the case or underlying events, they must be preserved, and likely produced.



  • If the witness provided interrogatory answers or produced or supervised the production of documents, you should prepare the witness for detailed questions about the discovery. You must go over all of those responses with the witness in the preparation session, to ensure the witness agrees with the interrogatory answers and properly supervised the document production.


  • Avoid surprises – ask the client in multiple different ways about key areas of the case. You should try to confuse them, and then explain why you did that.
  • Acquaint your client with lawyer tricks, such as embedding questions with false assumptions, or speeding up the questions.


  • Beware of the deponent that is in-house counsel or a senior executive. They often think “I can handle it” without realizing the other side is much more formidable then they think. This is where it is key that you prepare questions you think the other side will ask, and go through them in detail. Extensive role-playing is a must.


  • “I Represent You”


  • Interestingly, you need to explain this to corporate employees during their prep session. Otherwise, be ready for the following colloquy:


  • Q: Are you represented by an attorney in this deposition?


  • A: No.


  • Q: Does Mr. Bryan Cave represent you?


  • A: No.


  • Q: Tell me everything you have discussed with him.


  • Objection: That is privileged information.


  • Q: But she said you didn’t represent her……[etc.]


  • In other words, you must tell the witness during the prep session that you are his or her lawyer.



Part IV: 30 Things Your Deponent

Should Take Away from the Preparatory Session

  1. Tell the truth: A lie may lose the case. You must testify accurately about what you know. If you tell the truth and tell it accurately, nobody can cross you up. You should not exaggerate. If you lie, I will have to correct you, and that will be absolutely awful. If you stick to the truth of what you did, what you saw, and what you heard, you will be on firm ground. No one knows what you did, saw or heard better than you.
  2. If you are concerned about something you know, discuss it candidly with me, now.  Do you feel you may get in trouble if you answer truthfully? Is there anything you really don’t want the other side to know about this case or its underlying facts? Whatever it is, you need to tell me, now.
  3. Avoid jargon. If you have to use a word or term that the average person isn’t familiar with, then explain what it means.
  4. Don’t lose your temper no matter how hard you are pressed. Lose your temper and you may lose the case. If you lose your temper, you have played right into the hands of the other side, and the transcript will read like you are at fault, to blame, or a hothead.
  5. No jokes or wise cracks. Don’t make facetious remarks about the questions, the other lawyer, or the case. No one reading the transcript will take you seriously, and they will think you are a wise ass. You will come off terribly.
  6. Don’t try to outsmart the questioner or get cute. You are not here to “win” the deposition or show the other side up. You will end up looking bad.
  7. Don’t spar with the other lawyer. You will lose, and will look like you are hiding things. Your lawyer will spar for you – that is why I am there. Don’t argue with the questioner.  Don’t ask questions of the questioner (unless you don’t understand the question). Don’t try to outsmart the questioner. Remember – the questioner has a right to ask you questions. You have a duty to answer. If you want to take it out on someone by criticism, sarcasm, or argument – don’t, for you will be in the wrong, completely.
  8. Be courteous. Being courteous is one of the best ways to make a good impression on any party reading the transcript or viewing the video deposition. Be sure to answer “Yes, sir / ma’am” and “No, sir / ma’am.”
  9. Listen carefully to each questions. This requires intense concentration. Don’t be thinking about your last answer or what someone else is doing in the room. Listen to the entire question.
  10. If you don’t understand a question, say so.
  11. If you didn’t hear all of the question, say so.
  12. Pause a few seconds before you answer. This gives you time to think about your answer and gives your attorney time to object. Stop if your attorney objects. Don’t blurt out your answer. Wait for the question to be completed. Don’t anticipate the question.
  13. Listen to your attorney’s objections. It may be a technical objection for the record. However, many objections may alert you to a problem with the question.
  14. Don’t guess. If you don’t know, say so. You do not have to know the answer to every question asked. It is okay to just say “I don’t know.” Don’t attempt to testify to facts you don’t know because you think you should know those facts, or because you assume those must be the facts. Testify to only what you personally know. Do not volunteer who might know.
  15. Don’t volunteer! You must answer the question that is asked but answer only the question asked. Keep your answers short. You are not required to answer “yes” or “no” and you may explain as part of your answer, but you should do so only to make your answer truthful and complete. Keep it short. After your answer, stop. If there is silence after your answer, don’t feel compelled to expand upon your answer. Wait for the next question. Do not fill the silence – practice this.
  16. Do not memorize your testimony. If you do, you will appear to be a liar. Justice requires only that a witness tell his or her story to the best of his or her ability. Simply answer the questions asked in your own language.
  17. Documents: Be entirely comfortable with a document before you answer any questions regarding any document. Read or review the entire document first.
  18. Beware of questions involving numbers, including dates or times. If you make an estimate, make sure that everyone understands that you are estimating.
  19. Give a positive answer when you can. Don’t let the lawyer on the other side catch you by asking you whether you are willing to swear to your version of what you know by reason of seeing or hearing. If you were there and know what happened or didn’t happen, don’t be afraid to “swear” to it. You were “sworn” to tell the truth when you took the stand. Don’t say “I think”, “I guess”, or “maybe”, when you mean to be more positive in your testimony. It is better to say “as I recall” or “in my opinion”.
  20. Be on guard always. The questioner is not your friend. Do not chat with the examiner before, during, or after the deposition. They will try to make a connection with you; you don’t want this.
  21. The deposition isn’t over until you leave the building. Don’t let down your guard. Some lawyers will let you think they have finished, you relax, and then they ask you twenty of the toughest questions.
  22. The examiner may suggest that your testimony is inconsistent with some document, someone else’s testimony, or your prior testimony. Don’t believe it unless you are first convinced there is an inconsistency. Then you may explain it. Simply give your best recollection. If the lawyer says your testimony is inconsistent with a document, ask to see it. Then read it all. Remember, the document may not be accurate. It is not your job to jive everything for the other side, or win the case, or explain “how it all works.” It is only your job to testify to things you know.
  23. Don’t let the lawyer put words in your mouth. If he attempts to rephrase your testimony by asking “Is it your testimony that….” or “are you saying….” your answer may be “That is not what I said and I’ll stand on the answer I gave previously” or “I’ll stand on the answer I gave before.” Don’t assume the lawyer has accurately summarized your testimony. [Explain to the witness this is also where you may object.]
  24. If you are asked the same question several times, stick with your original answer, if accurate. Don’t change it simply because the same question is asked in a slightly different form. This is a common trick.
  25. Beware of leading questions containing half-truths. The lawyer may ask you a question containing facts which are only half-true or containing facts not within your knowledge. Don’t let the lawyer put words in your mouth. Don’t answer yes or no; answer in your own words.
  26. Beware of questions which begin “Isn’t it a fact …” and “Is it fair to say ….” These questions usually contain implications which may be only partly true. If you don’t agree, say so. If you don’t know, say so.
  27. Beware of alternative questions. “Did you get this information from A or B?” There may be several sources, including those not mentioned.
  28. Everybody makes mistakes. If you gave a wrong answer, say so. You have a right to correct your answer. It is better to correct a wrong answer at the deposition rather than at trial.
  29. Take your time. This is not a race. Don’t rush. Pause after each question and think about your answer before you respond. Then answer.
  30. Breaks. Do not hesitate to ask for a break at any time. This is especially true if you are losing your concentration, are becoming tired, or you are starting to lose your temper. [Explain you will also help with that by monitoring the tone and attitude of the witness, and will ask for breaks when the witness needs it.] If a question is pending when a break is sought, you must answer the question, but then we will break for a few minutes.


Part V: The Deposition Itself – Breaks


  • The deponent should be permitted to take them whenever necessary. The general rule is to break every hour, for 5-10 minutes.


  • Some questioners will try to finish a line of questions before breaking. It is not necessary to honor the request, so long as you do not appear to be impeding, delaying or frustrating the fair examination of the deponent. See Fed. R. Civ. P. 30(d)(2).


  • In most jurisdictions, you cannot communicate with a client about the case or the deposition after the deposition starts.


  • Thus, following each and every break, your deponent should expect to be asked whether she consulted with counsel on break and, if so, what was said. And your deponent must answer that truthfully.


  • Beware of continued depositions!! Your opponent can assert that anything said to the deponent during the days or weeks between testimony is no longer privileged.


  • For a great, fifty state survey in this area, see David S. Wachen and George Hovanec, Can We Talk? Nationwide Survey Reveals Wide Range Of Practices Governing Communication With Witnesses While Defending Their Deposition, published by the Section of Litigation of the American Bar Association (Undated), available on file with the authors.


Part VI: The Deposition Itself – Objections 

  • Federal Rule 30(c)(2) requires that “[a]n objection must be stated concisely in a nonargumentative and nonsuggestive manner.”


  • Rule 30(c)(2) also requires that “A person may instruct a deponent not to answer only when necessary to:


  • preserve a privilege,


  • enforce a limitation ordered by the court, or


  • present a motion under Federal Rule 30(d)(3) (moving to terminate for bad faith or unreasonably annoying, embarrassing or oppressive conduct).”


  • How to direct the witness not to answer: “Objection, that question calls for attorney-client privileged information. I instruct the witness not to answer.”


  • Courts are increasingly militant in punishing “speaking objections.”


  • Require reading: Security Nat’l Bank of Sioux City v. Abbot Laboratories, 299 F.R.D. 595 (N.D. Iowa 2014) (counsel sanctioned, and required to prepare a training video for future lawyers, for excessive speaking objections).


  • As a general rule: explain any inappropriate conduct off the record first, and try to defuse it. If it persists, then put things on the record.


  • What objections do you have to make?


  • “The usual stipulations” – all objections are preserved, except as to form.


  • But the actual rule is very different – you need to be ready!


  • Objections to competence, relevance, or materiality of testimony are not waived by failure to object prior to or at the deposition, “unless the ground for it might have been corrected at the time.”   R. 32(d)(3)(A).


  • Timely objection is required if related to “manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time.” Fed. R. Civ. P. 32(d)(3)(B).



Part VII: The Deposition Itself –

Rehabilitating the Deponent and Correcting the Record


  • Never leave a bad record. If the witness wasn’t given a chance to fully explain, or there are other facts the witness left out, or must clarify, then you should get into these matters on re?direct.
  • The same is true with “read and sign.” Always preserve the right to read and sign – it is rare that a deposition is completely correct, especially one that features many people, dates, numbers, or the like. You should use the read and sign process to correct things (but be aware the witness can be asked at trial

[1]               Some cases hold that a document shared with a witness may still be protected as work product, but most don’t. Assume anything you share with the witness will be seen by the other side.