You’ve been asked to take a fact witness deposition. Where do you start? Fact witness depositions can present challenges such as learning the case-specific and court-specific rules for your deposition, getting through a large number of documents in a limited time, and budgeting time to cover all relevant topics—all while dealing with an opposing attorney who may try to take advantage of your inexperience. While this article is not meant to be an exhaustive list of all the things to consider when embarking on your first fact witness deposition, here are some pointers to help the deposition preparation and deposition go more smoothly.
Details Matter—Familiarize Yourself with the Applicable Rules
At the outset, when preparing for the deposition, be sure to pull the applicable court order or rule governing depositions in your case. In some jurisdictions, in the absence of a court order, the court department handling the litigation will have rules posted on its website governing the discovery process, such as depositions, or the local procedures may apply. Knowing these rules at the outset is crucial because it will color the rest of your preparation for the deposition. For example, if the judge’s order mandates that all depositions cannot exceed three hours, that will affect the length and scope of your deposition outline and force you to refine the topics to only those crucial to your case. Details matter, including the location of the deposition.
Last, in addition to the rules specific to your case or by court order, you should be familiar with any local quirks and rules for depositions in your jurisdiction. Unfamiliarity with these rules is an easy way for opposing counsel to detect inexperience. If they sense inexperience, they may try to take advantage of it. Anyone who has recently taken a deposition in Southern California is familiar with the “usual stipulation” that is rattled off at the end of a deposition. The most experienced attorneys are able to recite the stipulation off the cuff. Less experienced but prepared attorneys will have the stipulation written down at the end of their outline. In Southern California, you do not want to be the attorney who does not know what the stipulation is. The bottom line is that you want to make sure that you have checked all the local rules in your jurisdiction.
Thorough Investigation Can Reap Rewards
When preparing for a deposition, do not underestimate the power of good investigation and detective skills in uncovering crucial facts about the witness not otherwise available in the pleadings. Social media—which are worthy of a separate article—have an abundance of information about a fact witness’s background, affiliations, and interests, and can often include information that will support your themes or undermine your opposing counsel’s theories. Facebook, Instagram, and other social media websites may also have postings and comments regarding a plaintiff’s claims and claimants that should be considered as well. Pictures and comments on social media can sometimes expose weaknesses or factual inaccuracies in a party’s claims or defenses. Including such information during a deposition can strengthen your case for trial or settlement. Investigating a witness’s prior involvement in lawsuits can also be informative. Perhaps your witness has recent or pending bankruptcy proceedings that may be fueling the lawsuit or a criminal history related to the claims in the case. Even if such an investigation does not end up in your deposition outline, thorough investigation will invariably inform your deposition strategy and approach.
Know and Organize Your Documents and Exhibits
In fact witness depositions, attorneys often have a plethora of documents to go through with the witness. The deposing attorney should review and know all the documents relevant to the fact witness being deposed. This includes all references to the fact witness in plaintiff fact sheets, discovery responses, the complaint, other witnesses’ depositions, and other case documents. The deposing attorney should also go over all of the documents the witness brings to the deposition, as requested in the notice of deposition or other document requests, and mark such documents as exhibits. In addition, the deposing attorney should go back and check whether the document requests propounded before the deposition or plaintiff fact sheets encompassed everything needed for the deposition or whether a further document request or subpoena is needed before the deposition. Ideally, the deposing attorney would receive all the relevant documents weeks before the deposition date. If this involves a subpoena, you should budget for the subpoena response time in the jurisdiction, as well as a few additional weeks as a buffer to prepare and serve the subpoena and account for delays while the witness is gathering the requested documents.
So you have the stack of documents for your deposition—then what? While you are reviewing documents related to the witness, take the extra time to organize the documents in the order you intend to raise them with the witness—such as by incident, chronologically by date, or whatever method is appropriate. Fumbling around with a stack of potential exhibits during the deposition is frustrating and takes away valuable deposition time. Further, it throws attorneys off their rhythm and train of thought in asking questions and developing case themes, and it can fluster even more experienced attorneys. The more documents and potential exhibits you have, the more it becomes crucial to organize them beforehand.