Editor’s Note:  If you would like a copy of this document in MS Word (we know the font on this blog is hard on the eyes, we are working on it I swear, but in the meantime we are happy to send you our forms or checklists in Word), then please feel free to contact either of the authors, mark.duedall@bryancave.com or leah.fiorenza@bryancave.com.  And if you find this helpful, please check out the other “A++ Forms and Resources” we have posted to the blog, using the “Categories” drop down menu at the main page or clicking here and here.  Coming up next week:  another comprehensive checklist for preparing and filing a complaint.

The Master Deposition Timeline and Checklist

Two Weeks before Issuing the Subpoena (if you are issuing a subpoena to a non-party)

  • Please remember to run conflicts on every witness before you issue a subpoena to them. Failure to do so can be a very serious problem for you, and your Firm; it is a real problem to subpoena a client.

One Week before Issuing the Subpoena / Notice of Deposition

  • Request the check for the subpoena in advance of the date you intend to serve the subpoena. The check should include both mileage (round trip) and the witness fee.
  • Note recent changes to Federal Rule 45:
  • A subpoena must be issued from the district where the deposition will be held or where the production of documents will be made.
  • Make your court reporter arrangements now, especially if it is an out-of-town deposition. Do not call another law firm or whomever you know in that town the day before issuing the subpoena asking for a room – do this well in advance of finalizing the subpoena.
    • N.B.  If anyone ever calls you asking if they can use a conference room for a deposition in a case they are working on, your Firm likely has very strict policies on this. At an absolute minimum, you must run and clear conflicts on every party to your colleague’s case, and on the witness and his / her affiliation. (It would not do at all to host a deposition for someone that is suing a client of your Firm.) Then, call your office manager or office managing partner and obtain his or her express permission.
  • We have had great nationwide success using Will Ward of Courtroom Sciences Inc., 877-784-0004 (work), 706?581-6293 (cell), wward@courtroomsciences.com. He can arrange a court reporter anywhere in the country, conference rooms out of town, interpreters, etc.
  • However, determine whether your client requires a certain court reporting company and, if so, use that company!

Things to do on the Saturday or Sunday before the deposition (this really needs to be done on a weekend – you need several hours, uninterrupted, to complete this): 

  • Prepare (and put in order) all exhibits for the deposition. 
    • Your exhibits should include, at a minimum:
      • The subpoena or notice of deposition (almost always, this is exhibit 1, and starts the deposition).
      • Copies of any discovery responses certified or signed by the deponent. It is very important that you ask the deponent if s/he reviewed, approved, and then signed off on the answers. Many times, s/he did not, just signing at the direction of an attorney, or s/he only reviewed the responses in a cursory fashion. This is very important to cover in the deposition.
  • Labeling Exhibits
    • Avoid duplicative or confusing labels.
    • Think about using them at trial; try not to have labels change, (although numbers may, as that is somewhat unavoidable).
    • Check local rules or any applicable scheduling or discovery order; otherwise, do it the way it makes sense to you.
    • Think about future depositions, clarity, and simplicity.
  • Is there anything else that you need as a resource for the deposition (we suggest you bring a separate notebook containing each of these):

Things to do two days before the deposition:

  • Finalize your exhibit folders or binders!
  • Finalize your exhibit folders or binders!!
  • Please, we are begging you, at least two days before the deposition, finalize your exhibit folders or binders!!! 
    • In other words, you really cannot wait until the day before the deposition to finalize your exhibits. You will need multiple sets (see below), and the day before should be final prep, not hunting down documents and integrating them into your deposition plan and questioning.
    • This is especially true is the deposition is out of town. It is impossible to guarantee that your full exhibit sets will arrive by 8 am the morning of the deposition. The only other options, carrying multiple sets of your exhibits (you need at least four – see below) on the plane, is not advisable.
  • If the deposition is out of town, send all copies off by overnight mail to a trusted soul at the location of the deposition, except your master set that you carry with you. Note – you are sending these out two (2) days in advance of the deposition.
    • Number of copies: at least four.
      • Deponent;
      • Court reporter (optional, but highly recommended);
      • Your master set; and
      • A complete set for the attorney defending the deposition.
  • Keep exhibits orderly and accessible.  Methods vary by preference (e.g., binders, folders), but choose a method that works for you and that you have tried in advance in other depositions or with a colleague.
  • Binders truly are preferable; pulling documents out of folders, and circulating them to all parties, will really interrupt your flow and slow you down.
    • The only problem with binders is that you may not use some of the items in the binders, and the deponent or the other side will wonder why. Let them wonder. We still think flipping documents in a binder is far easier than taking out a folder, getting copies, and the attendant delay of circulating its contents to everyone. 

Things to do the day before the deposition:

  • Have your secretary re-verify that:
    • the court reporter is coming.
    • all conference room arrangements are complete, including drinks (including a break out room if you want one for yourself and client, and/or for the other side).
    • the names of all parties attending (including the court reporter) are entered into building security.
    • N.B. It is not customary to order lunch for anyone, people usually go out on their own.

Matters of Form During the Deposition

  • Beware of letting documents control the deposition so much that they impede quality testimony and/or constrain your ability to interrogate the witness.
  • Beware of letting documents become a distraction or a waste of time.
  • The court reporter is referred to as “Mr. Court Reporter” or “Ms. Court Reporter.”
  • Provide the court reporter with a list of names and/or words that are hard to spell, that you expect will come up during a deposition.
  • Take a break every single hour, no matter what.
  • Be careful with the use of pronouns. Using pronouns can often make a statement unclear and it can make quoting from the transcript more difficult and less clear. If you can, don’t ever use pronouns at all, always “Ms. Smith” or “Steve” or other proper names.
  • Go off the record absolutely as much as you need to, to clarify things, head off conflict or inappropriate behavior, re-instruct the witness (if s/he keeps talking over you or not waiting for you to finish, a constant problem), or deal with other matters.