On our website, we have sample depositions in car and truck accident, medical malpractice, and product liability cases. The purpose of these sample deposition transcripts is to help lawyers who are taking a similar deposition and for victims who are trying to certain the type of personal injury deposition questions they can expect.
In personal injury cases, depositions are where the action is. Most cases do not go to trial. The deposition is often the place that makes or breaks settlement value.
There are other kinds of “depositions” but the most common deposition is the oral deposition. This is the lawyer for one party asks questions, usually in a conference room, the witness answers by the deponent, and objections and cross-examination by the other parties’ attorneys.
Depositions can be arranged but one party simply noting the deposition. Permission of the court is rarely required unless it is a pre-lawsuit deposition to perpetuate evidence to investigate a possible claim which is something we rarely do.
Using Sample Depositions
As a young lawyer, I learned how to take a deposition like a young quarterback with a clipboard, second chairing depositions where I watched some of the best plaintiff and defense lawyers in the country. I could see what I liked, what I didn’t like, and what would work for me.
Most Maryland civil litigation lawyers are not afforded this kind of opportunity. For those who have not had the opportunity, I think reading sample depositions is the next best thing. None of these depositions are intended to be held out as “How to Take a Deposition 101.” In fact, honestly, these sample depositions were largely pulled out at random. But we are good at this. And reading examples of depositions taken and defended by other lawyers gives you a chance to see how another attorney approaches the task under a fact pattern, giving you what you should (or should not) do.
How to Take a Deposition
In preparing to take a deposition, lawyers need to prepare. Sounds simple, but I can’t tell you how many depositions lawyers walk into it cold. (Confession: I did this earlier in my career when I thought I didn’t need to prepare to do the job. You live and learn.)
You need to review the opponent’s pleadings and other discovery. Look for mistakes, inconsistencies, and checks they wrote but cannot cash. When you ask questions, listen to the answers. Again, an obvious point, but it is amazing how many lawyers do not listen to the answers. If you are having a genuine conversation, that is the path to getting all the facts you need to get your case ready for trial.
How to Defend a Deposition
Mostly, defending a deposition is just sitting there and letting the witness answer questions.
Maryland Discovery Guideline 8(f) should guide your conduct:
It is presumptively improper for an attorney to instruct a client not to answer a question at deposition unless:
- There is a specific assertion of privilege in accordance with these guidelines.
- There is abusive conduct in the questioning of which this question is a part with a specific identification of why the instructing attorney believes this to be so, or
- The question is completely irrelevant or intended to embarrass the witness.
So lawyers may instruct her client not to answer a question if the question is irrelevant. But the problem is that the scope of discovery is so broad that reasonable people will disagree on what is relevant. The standard in federal court is even more restrictive. So just proceed with caution and fight battles worth fighting.
One solution in some jurisdictions is to get a judge on the phone. This can be the judge assigned to the case or the motions’ judge. If you know you are right, this is the path to get an immediate ruling so the deponent does not have to be deposed a second time.
Dealing with Speaking Objections
A speaking objection is when the lawyer objects and provides additional information in an effort to coach or instruction the witness by the nature of the objection. Lawyers do this all of the time because there are no parents in the room, i.e. there is not a judge to maintain order. (It is possible I did this a bit when I was younger.) Today, I’ll tolerate a sincere speaking objection for clarification here and there. But you have to make sure the other lawyer knows you will not tolerate coaching and will take action if it happens again.