Taking a deposition is only the first step. After the deposition, an attorney must use the testimony from the witness to analyze the strengths and weaknesses of the case and to update any evaluation or trial strategies previously relayed to the client. There are also summaries to be done, signature pages to be completed, copies to be made and sent to experts or put in witness binders and usually additional discovery to be completed. The following is a "checklist" of tasks every attorney should consider after taking their first deposition.
IN THE DAYS FOLLOWING THE DEPOSITION
- Follow up with opposing counsel on all issues or outstanding requests discussed during the deposition. For example, if opposing counsel tells you that they will produce a document to you during the deposition, follow up in writing regarding this agreement.
- Advise the client immediately if the witness testimony has changed possible settlement of this case or trial strategy. That occurrence qualifies as a significant development in the case, and your client should be notified.
- Draft an initial summary of the deposition for the client and send it within one week. Make sure to analyze both the testimony and the credibility of the witness in the summary. The witness' jury appeal may play an important role in settlement or trial tactics, and you should analyze the effect of the witness' jury appeal for the client.
- Draft a memorandum to the file with additional tasks to follow up on, including discovery, legal research, an updated evaluation letter or changes to the legal theories of the case. Do this while the deposition is still fresh in your mind. You should place follow up reminders on your calendar, so that these tasks do not get overlooked.
- Send out additional discovery requests, if necessary, immediately after the deposition. Deposition testimony routinely reveals other avenues of discovery to be pursued. The discovery requests may include additional requests for production, interrogatories or requests for admission. Also, coordinate and notice depositions for anyone identified by the witness during the deposition from whom you will need further information.
UPON RECEIVING THE TRANSCRIPT
- Upon receipt of the transcript, if the witness was yours (you defended the deposition), send the transcript to the witness for review. Advise the witness that they can make changes to the transcript if the court reporter did not record their testimony accurately. They may also make substantive changes, but these will be scrutinized closely by opposing counsel and potentially the jury.
- Docket or give yourself a calendar reminder regarding the due date of the witness's "signature page" for the transcript. Make sure that it is turned into the court reporter by the deadline so that you don't waive the opportunity for your witness to make changes to the transcript.
- When you receive a copy of the deposition transcript, review and further analyze the testimony. Mark pertinent passages for future use (trial, deposition designations, arbitration, pre-trial memorandum or dispositive/discovery motions).
- Prepare a line by line summary of the deposition for future use. This summary will be helpful during direct or cross-examination of a witness during future court proceedings.
- If you have retained experts, make sure to send the deposition transcript to them for review if applicable. Sending this material earlier rather than later gives the expert witnesses time to conduct their analyses.
- Place a copy of the deposition transcript into each applicable witness binder for future reference. This will eliminate later work to gather and organize pertinent materials as the case is prepared for trial.
- If you order an ASCII disk, make sure to incorporate the deposition transcript into the applicable computer software. One of the benefits of this type of software is being able to search multiple transcripts at one time. "Processing" the ASCII transcript when it is received should be a standard office procedure.
- Do not open up the envelope with the "original" transcript contained inside. This original sealed document will be submitted to the court at trial. This process is sometimes referred to as "lodging" the transcript with the court.
- Make sure to list the witness who was deposed as a witness in any supplemental discovery disclosure statements, if the witness has not been listed previously. You may also want to start a running list of witnesses who have been deposed. It may serve as a starting point for your witness list for trial.
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About the Author
Jennifer Holsman is a third year associate practicing in the municipal liability trial group at Jones, Skelton and Hochuli, P.L.C. in Phoenix, Arizona. She is a graduate of Syracuse University Law School. Ms. Holsman is a member of the American Bar Association (YLD and Litigation Committees), Arizona State Bar Association (YLD Executive Council), Maricopa County Bar Association (Editorial Board), Federal Bar Association and is a Court Appointed Special Advocate (CASA).
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