For a first-time witness at a deposition there is generally quite a bit of stress when they enter the room where they are going to be deposed. The surroundings may be intimidating, with two or more attorneys in the room, as well as a court reporter, and perhaps a videographer. And of course most witnesses are preparing for the worst: a trick question from the attorney taking the deposition, or perhaps a “gotcha” scene straight out of a Perry Mason episode or a confrontational scene like that between Tom Cruise and Jack Nicholson in A Few Good Men. But typically depositions start out with a series of rather mundane preliminary questions including:
- Have you ever been deposed before today?
- Do you understand that you are under oath, and that your testimony is the same as if you were testifying in court?
- Have you taken any medications or other substances that may affect your ability to understand and/or answer my questions?
- If you do not understand any of my questions do you understand that you can ask me to rephrase the question?
- If I ask you a question and you answer that question I will assume that you understood my question, okay?
- This is not intended to be an endurance event, so if you need to take a break at any time, let me know and we will take a break. Is that okay?
While some of these preliminary questions are meant to break the ice and put a witness at ease (for example, if it is the witness’ first time being deposed the attorney generally follows up with an explanation of how the process will work), many of these preliminary questions are meant to create a record, if necessary, to impeach the deponent if they ultimately testify at trial. For example, if a witness begins to backpedal with their testimony, after they have been deposed, claiming that they didn’t know that they were under oath, or claiming that they didn’t understand the question, the examining attorney can go back to those very initial questions and slowly walk the witness through their preliminary answers. “And at your deposition you knew you were under oath, didn’t you?” “And you understood that if you didn’t understand any of my questions you could ask me to clarify or rephrase the question, correct? In fact, during your deposition you asked me on a couple occasions to rephrase a question, correct? But when I asked you about [insert subject] you did not ask for any clarification, correct?”
For more information on this article or the other articles in this series, be sure to check the Trial Lawyer on Your Side blog next week or contact the Goosmann Law Firm at [email protected] or (712) 226-4000.