information aboLzt a pending or anticipated legal action. Deposition

p

testimony of persons with knowledge relevant to the litigation. Most depositions are taken while an

action is pending in the courts. However, depositions may also be taken to preserve testimony for the

possibility of proceedings in court. While most depositions are taken upon oral examination in person,

depositions may also be taken by telephone, video or upon written questions.

Any party may take the testimony of any person who has or is thought to have information

relevant to the action or information “reasonably calculated to lead to the discovery of admissible

evidence”. If your governmental agency is a party, as an officer, director, or managing agent, you may

be required to attend a deposition by your agency as a designee if you can testify to all requested

matters known or reasonably available to the organization.

NOTICE OF THE DEPOSITION

Before appearing at a deposition as a party witness, you or your attorney will receive notice of

the deposition.

A subpoena will be served upon you if you are a nonparty witness. The notice or

subpoena may include a request to produce, at the deposition, designated books, papers, documents, or

other relevant tangible things, and to permit inspection and copying of these materials.

LOCATION OF THE DEPOSITION

Upon receipt of proper notice or subpoena, you will be required to appear at the time and

location indicated, with the relevant tangible materials. As a party deponent, your deposition location

may be anywhere within 100 miles from where you live, are employed or transact business in person,.

or at any other convenient place fixed by an order of the court. As a nonparty deponent, the deposition

location may be anywhere within 100 miles from where you live, are employed, transact business in

person or are served, or at any other convenient place fixed by an order of the court. The deposition

location for officers, directors, and managing agents is determined as if the deponent’s place of

residence, employment or business were that of the organization. Depositions may be conducted at the

opposing attorney’s office, an uninvolved attorney’s offic, the court reporter’s office, the courthouse

or some other location convenient to the witness.

PRIOR TO THE DEPOSITION

Prior to the deposition, your attorney will prepare you for the deposition by explaining the

deposition process, planning strategy, generally reviewing documents, relevant facts and events, and

reviewing and refreshing your recollection. Your attorney will also go through with you probable

questions so that you know what to expect during the deposition. During this part of your preparation

your attorney may help you to correct misstatements and misconceptions, avoid inflammatory

statements, clarify ambiguous statements, effectively deal with surprise questions, and inform you how

to be a good witness.
y

u

miss

g

certain

a word or two, say that you did not hear the question. Do this even if you are almost that you know what word you missed.

or so convoluted

BE SURE YOU UNDERSTAND THE QUESTION. Sometimes the question will be so long

may be tempted

that you do not know what you are being asked except that it concerns subject A. You

on to some other

to answer by saying something about subject

A in the hope that the lawyer will then go subject. Do not do that. Just say that you do not understand.

ANSWER THE QUESTION. After you have listened to, heard, and understood the question, then answer the question. Generally,

O Make try to keep your answer short and to the point.

shakes,

sure that all your responses are verbal. The written transcript does not reflect head nods or shrugs; hand gestures, or other nonverbal forms of communication.

“Where,”

El Answer what you are asked. If the question begins “Who,” your answer should be a name; if

a place; if “When,” a date; and so on. El If you do not know or remember, say that and then keep quiet. Avoid guessing at facts.

calendar.”

El Do not volunteer a reference to a document, such as, “I don’t know; I would have to check my desk

to

El

word

Sometimes

his next

after

question.

you give your answer there will be a silence. The other lawyer may be thinking how

fill the silence with words.

Silences sometimes make a witness uncomfortable. You may be tempted to Do not do that. Keep quiet and wait.

Just

El If

give

a question

whatever

irritates you or makes you angry, resist the temptation to argue with the other lawyer. facts you know are responsive to the question and thenkeep quiet.

sense.

El If you

Do

are asked a question that requires

a longer answer, give the longer answer. Use your common

answer

not make the other lawyer play “Twenty Questions.” But if you are in doubt, keep your

El.

short. Do not make speeches. Remember that every word is another target for the other lawyer.

should

In dealing

be

with the other lawyer, your manner should be courteous and open, but mentally you

about it when

on guard

you

at all times. Even if something is said “off the record,” the other lawyer can ask you are back on the record. .

It

0

may

Your

point

lawyer may object to certain questions. Try not to be distracted by that. Listen to the objection.

concentrating.

out some hidden trap in the question. The objection is a reminder to you to keep

instruction,

El Your lawyer may go further and instruct you not to answer the question. If he does, follow his

wrong, but you

even

will

if you know the answer to the question. He may get into trouble with the court if he is not. :

harm your

TELL

case,

THE TRUTH. You must always follow that rule. Even if you think your answer might

you look better

don’t be evasive. The facts will come out anyway, and a forthright answer will make than an answer that hides or softens the facts.

your original

STICK TO TRUTHFUL ANSWERS. You may hear the same.question more than once. If answer was accurate, stick to it. The fact that the other lawyer keeps coming back to the
AFTER THE DEPOSITION

Deposition Transcript. You may be asked to review the deposition transcript arid make changes

in lorm or substance. You will be asked to sign the transcript unless the parties stipulate to waive the

signing. The party who initiated the discovery retains the original deposition transcript.

Duty to Supplement.

O

A deposition response must be supplemented if the response was incomplete when given. For

example, if the answer to a question was that

A and

B occurred but testimony at trial revealed that

C

and

D alsD occurred, the deposition can be used to impeach the witness or attack his credibility.

El

A party must supplement a deposition response about the identification and location of persons with

knowledge of discoverable matters.

El

A party must supplement a deposition response about the identification of trial experts.

El

A party must supplement a deposition response if the party learns that the response was incorrect

when made and the circumstances are such that a failure to amend the response would be in substance a

knowing concealment. For example, if a party testifies that the brakes on her vehicle were working at

the time of the collision and she subsequently learns from a mechanic that the brakes were not working,

she has a duty to supplement the deposition response.

El

A party must supplement a deposition response if the party subsequently learns that the response is

no longer true and the circumstances are such that a failure to amend the response would be in

substance a knowing conceal.ment. For example, if a party testifies that because of a particular accident

he cannot and will not ever walk but subsequently regains his ability to walk, he would be obliged to

supplement the deposition response.

Use ofDepositions in Court Proceedings. The deposition transcript may be used in a number

of different ways at trial. If the deponent is unavailable, part or all of the deposition transcript may be

read into the record as direct evidence. The deposition transcript can be used to refresh the recollection

of a forgetful witness. Arid, of course, it can be used to impeach the witness whose trial testimony is at

odds with that given at his deposition.

OFFICE OF LEGAL COUNSEL

Sources include:

The Deposition J-Iandbook, Strategies, Tactics and Mechanics, 1988, Dennis R. Suplee, Diana

S.Dona.ldson

Wisconsin Discovery Law and Practice, State Bar of Wisconsin CLEBooks, November1990

Preparing for Your Deposition, State Bar of Wisconsin Law Office Videotape Series

Wisconsin Statutes, 1993-94

Office ofLegal Counsel, Wisconsin Department ofHealth and Family Sen’ices

Editedfor DHFS Department-wide Training 10/1 7/2006 by S. Esraei