DEPOSITONS AND INSTRUCTIONS

TO WITNESSES WHkT
IS A DEPOSITION? A deposition

is the process of taking

a witness’s testimony under oath, out of court, regarding information aboLzt

a pending
or anticipated legal action. Depositions establish and preserve the sworn 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.DURING THE DEPOSITION: (ASIC WITNESS TESTIMONY INSTRUCTION) LISTEN TO THE QUESTION. Concentrate

on everyword. Wait until youhear the last word of the question before youstart your answer.
If youlisten closely to ordinary conversation, youwill see that wecut off one another quite frequently

-not to be rude, but to keep the conversation moving. Listening

is hard work. If youlisten as you should, youwill be tired at the end of the day. BE SURE YOU HEAR THE QUESTION.

If the lawyer drops his voice orsomeone. coughs and you miss

aword or two, saythat youdid not hear the question. Do this evenif youarealmost certain that you know what word you missed. BE SURE YOU UNDERSTAND THE QUESTION. Sometimes the question will be so long orso convoluted that youdo not know what youare being asked except that it concerns subject A. You may be tempted

to answer by saying something about subject
A in the hope that the lawyer will then goonto some other subject. Do not do that. Just saythat youdo not understand. ANSWER THE QUESTION. After youhave listened to, heard, and understood
the question, then answer the question. Generally,
try to keep your answer short and to the point. O Make surethat all your responses are verbal. The written transcript does not reflect head nods or shakes, shrugs; hand gestures,
orother nonverbal forms of communication. El Answer what youareasked. If the question begins “Who,” your answer should be a name;if “Where,”

a place; if “When,”

a date; and soon. El If youdo not know or remember, saythat and then keep quiet. Avoid guessing

at facts. El Do not volunteer

a reference

to a document, such as,“I don’t know;

I would have to check mydesk calendar.” El Sometimes after you give your answer there will be asilence. The other lawyer maybe thinking how to word his next question. Silences sometimes make

awitness uncomfortable. You maybe tempted
to fill the silence with words. Do not do that. Keep quiet and wait. El If a question irritates youormakes you angry,resist the temptation

to argue with the other lawyer. Just give whatever facts you know are responsive

to the question and thenkeep quiet. El If youareasked

a question that requires

a longer answer, give the longer answer. Use your common sense. Do not make the other lawyer play “Twenty Questions.” But if youarein doubt, keep your answer short. Do not make speeches. Remember that every word is another target for the other lawyer. El. In dealing with the other lawyer, your manner should be courteous and open, but mentally you should be on guard
at all times. Even if something

is said “off the record,” the other lawyer canask you about
it when youareback onthe record..0 Your lawyer may object to certain questions. Try not to be distracted
by that. Listen to the objection. It may point out some hidden trap in the question. The objection

is areminder
to youto keep concentrating. El Your lawyer may gofurther and instruct younot to answer the question.
If he does, follow his instruction, evenif youknow the answer
to the question. He may get into trouble with the court if he is wrong, but youwill not.

: TELL THE TRUTH. You must always follow that rule. Even if youthink your answer might harm your case, don’t be evasive. The facts will comeout anyway, and
a forthright answer will make youlook better than ananswer that hides orsoftens the facts. STICK TO TRUTHFUL ANSWERS. You mayhear the same.question more than once.If your original answer was accurate, stick to it. The fact that the other lawyer keeps coming back to thequestion does not mean that you are noi answering properly. You must give the facts as you know them. If you gave them right the first time, stick to your answer. Through his questions
he may try to create doubt in your mind even about facts that you imow very well. A small change
in your testimony may be crucial. Of course,
if you realize that your earlier answer was in error or incomplete, you should correct or supplement

it. Obviously, you should not say that an earlier answer

is true if you become aware that it is not. 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 of Depositions

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 of Legal Counsel, Wisconsin Department

of Health and Family Sen’ices Edited for DHFS Department-wide Training 10/1 7/2006 by S. Esraei