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The A++, Super Comprehensive, Don’t Ever Start Anywhere Else Set of Opening Questions, Introductory Matters, and Document Inquiries for Taking a Deposition [1]

Have you ever had to press garlic for a recipe? Or put together a Swedish bookshelf, purchased from a Swedish superstore? Yes, you have – and you may have succeeded, so long as you had a garlic press, or the bag of special Swedish tools respectively. But what if you don’t? Yikes. An easy part of the job becomes hard; your likelihood of failure increases, substantially.[2]

Practicing law is often the same. Certain tasks are very complicated. Reasoning, analysis, complex drafting, making hard things simpler for busy clients to understand – not easy stuff. But with the correct tools, forms, checklists, and honed skills, you can render some of the harder tasks easier, allowing you to focus your time, smarts, and passion on the really tough part of the assignment.

Now, this is not to say the right tool makes for a perfect end result. Preparing Mom’s classic lasagna is no slam dunk, even if you purchased your garlic press from the high?end kitchen store. And the Swedish bookshelf, even with the complete set of tools, well . . . next subject.

So in the first of a long series, we are circulating our best checklists, scripts, do’s and don’ts, and the like. Our first: the introductory matters, opening scripts, and initial questions (word?for?word) to use in any deposition. Why try to remember all the usual opening stuff? (BTW, you never will – there are twelve pages of opening questions and tips, each of them serving a unique purpose, as set forth below). Why scramble the night before the deposition, writing out introductory things (for the nth time), taking you away from preparing for the substance of the deposition, such as key dates, words, thoughts, and documents? We hope that after you read this article, such exercise will be a thing of the past.

Below you will find the following:

  • In case you need more convincing, a preamble of classic deposition errors, made in the first minutes of the deposition, due to the lack of a comprehensive, word?for?word script of introductory matters and questions.
  • The script: a comprehensive, word?for?word list of every opening question and introductory matter for your deposition.[3]

But wait, there’s more!

  • Virtually every deposition deals with documents. But before asking about the substance of a document, ask about its history and minutia – who drafted it? Were there prior versions? Did other people work on it? For how long? Did the deponent ever make notes on it? Or on a prior draft? And where are those notes today?
  • So as your added bonus, we include “The Forty-One Questions to Ask About Every Single Document in a Deposition.”

We hope this is helpful to you.


Part I: Classic Deposition Errors –

Often Made in the First Minutes of the Deposition

These have happened to all of us (or a colleague we know) when taking a deposition:

  • You ask the deponent if she has ever been deposed before, but forget to ask if she has ever testified at trial. Thus, you fail to obtain some good information on the deponent. Worse, you don’t know to obtain a trial transcript from some old case to reveal how the deponent holds up (or breaks down) under cross-examination.
  • You ask the deponent how he is feeling that day. He says, “fine.” But you forget to also ask if he is taking any medication. Halfway through the deposition (or afterward, such as when the “read and sign” comes back), you learn the deponent was medicated that day. Or as high as a kite. The deposition is more or less worthless. You probably have to take it again. And you have to explain to the client why it has to pay your billable rate to prepare again, and also take the deposition again (and pay for the new transcription expense) – because you didn’t have a script of opening questions covering this point.
  • You ask the deponent about a document. But you forget to ask if the deponent knows of any prior versions. Or, you actually remember to ask about prior versions, and the deponent states “I don’t know of any.” Yet then, you forget to ask the follow up: “Is there anyone that would know of any prior versions?” And so, you never get the real answer you need: “Well, Ted and Sally ran with the document for a while before I got involved.” This is information you need – it might be critical – but by failing to have written down every single follow up question you should ask about every single document (see Part III, infra), you miss out.
  • You ask the deponent if she has ever been convicted of a crime. But you forget to ask if she has ever filed for bankruptcy or been denied a discharge in bankruptcy. You fail to obtain important information about the deponent and her past fraud or wrongdoing.
  • The attorney defending the deposition asks at the outset if “the usual stipulations apply.” Not wanting to appear uncooperative, or inexperienced, you say “of course.” But why would you agree to ground rules that are not clearly stated? At best, the other lawyer is being lazy and co?opting you into equal laziness. At worst, the other lawyer is creating a record that you agreed to whatever rule, waiver, or system that he later creates to attempt to limit the use of your outstanding deposition.[4]
  • For instance, “the usual stipulations” typically includes waiving the deponent’s right to read and sign. But in some jurisdictions, if the deponent is a non?party, waiving the read and sign process precludes you from using the deposition at trial, unless the other party to the lawsuit also agrees to waive the read and sign. If the other party to the lawsuit simply sat there during your opening of the deposition, saying nothing and smiling as you agreed to “the usual stipulations” mentioned by the non-party deponent’s counsel, then you have likely waived your ability to use the deposition at trial.[5] You have made an error – a very serious one – by agreeing to unstated “usual stipulations.”

The examples are myriad. But it doesn’t have to be this way. None of these are strategic mistakes – they are simply a failure to have, and use, a tried and true list of opening questions and descriptions of the rules of deposition. But fear no longer! Review the attached, and file it away. (Or email your authors for a word version, to cut and paste in to your next deposition outline.) Put the opening stuff on autopilot with the following script, and spend your time and energy on the real deposition preparation.

To continue reading, please download:

Part II: The Word for Word Script of Every Opening Question and Introductory Matter for your Deposition

Part III: The Forty-One Questions to Ask About Every Single Document in a Deposition


[1] The Authors wish to thank Wendy Godfrey and Melissa Kotun of Bryan Cave, and Juan Martinez (Emory University School of Law Class of 2015), for their suggestions, additions, and thoughtful revisions, in making this as comprehensive as possible for our fellow litigators.

[2] For some comic relief in the middle of your hard day, enter “What can I use if I don’t have a garlic press?” into the website YAHOO! ANSWERS, https://answers, (last visited July 28, 2015). Some great responses: “a Chinese knife would be best,” “I used a hammer,” and of course, the classic, “run out and buy a garlic press.”

[3] We don’t pretend to be perfect! If you have others, or better formulations, please contact your authors, we would love to hear from you and include them in a future iteration of this document, with full credit to you.

[4] See Stephen D. Archer, The Dangers of the “Usual Stipulation” in Deposition Practice, Los Angeles Bar Association Survival Guide for New Attorneys, Fall 2006, at 46

[5] See Fla. R. Civ. P. 1.310(e) (requiring all parties to agree to allow a deponent to waive signature, if the deposition transcript is to be used at trial).