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DEPOSITION ASSISTANCE FOR ATTORNEYS AND CLIENTS

This section is intended not only to assist newer trial attorneys in knowing what to cover in a pre-deposition preparation session with clients and/or friendly witnesses, but to serve as a refresher and check-list for older trial attorneys as well. It won't cover everything, but hopefully will be a reminder of the important points to cover.

RULES GOVERNING DEPOSITIONS are generally Rules 176, 199-203, 205 and 215.5 TRCP. Also see §7.011 TCPRC (an attorney's liability for costs); §52.021 Gov't Code (certification of court reporter); §52.059 Gov't Code (charges for depositions); §20.001-.002 TCPRC (who may take depositions)

DEPOSITION NOTICE:

1. must be in writing.

2. must contain the standard identification showing the court, court number and style of the case and be addressed to the other party's attorney.

3. a copy must be sent to the attorney for the opposing party and to all other counsel of record, per Rule 21a TRCP).

4. must identify the person or entity to be deposed (Rule 199.2(b) TRCP), and if a non-party, the notice is to include the address so that the officer or court reporter who issues the subpoena can locate the witness (Rule 176.5 TRCP).

5. If you are seeking to depose an UNKNOWN CORPORATION WITNESS or other entity when the identity of the person in the organization is unknown, the deposing party or attorney can require the organization to designate the person or persons who will testify on its behalf, and upon certain subjects or areas (Rule 199.2(b) TRCP).

6. The deposing party or attorney may also depose any individual officer, agent, or employee of the organization by noticing that person for deposition by name Hospital Corp. v. Farrar, 733 SW_2d 393, 395 (Tex.App.-Fort Worth 1987)

7. If you have given notice to the deponent to appear "duces tecum" to produce documents the deposing attorney must give at least 30 days prior notice of the documents to be produced (see Rule 199.2(a), (b)(2) and (b)(5) TRCP). (My NOTE: If you have previously sent a Request For Production for the same documents, over 30 days before the deposition, does this not comply with the 30 days prior notice, so that when you request them again for the deposition, the party to be deposed has already had 30 days prior notice. But if the opposing attorney has made objections to any such documents, then those should be disposed of with a Motion to Compel, prior to the deposition, to clear the air and not waste your time and money on a deposition, arguing about what should or should not have been produced or whether the 30 days has been met by the Request For Production or not.

WHAT IS A DEPOSITION?

A deposition is an interrogation of a witness (a client or a third party witness), before a person qualified to take depositions, to preserve that sworn testimony for use in trial and/or other pre-trial matters, by the deposing attorney, with the right of all other attorneys in the case (including the attorney of the party being deposed) to also interrogate the party being deposed. A deposition may be given before a Court Reporter to be transcribed later; and/or before a videographer who records it on videotape; and/or on an audio tape; and/or in a deposition by written question, depending upon the notice given (see Rule 199 TRCP et seq). The witness is sworn, just as in court, and the deposition is recorded in some form, as notice was given.

SCOPE OF DISCOVERY FOR DEPOSITIONS is governed by Rule 192 TRCP

PROFESSIONAL COURTESY IN THE TAKING OF DEPOSITIONS:
It is a generally recognized professional courtesy that the deposing party:

1. Inquires of the opposing counsel as to what mutually agreeable dates are available to take the opposing party's deposition; and

2. Offer to take the opposing party's deposition in the opposing counsel's office;

3. Remember that the over zealous deposition, just as the over zealous interrogation of a witness during trial, may result in a jury's backlash toward the deposing attorney, not the witness. The purposes of the taking of a deposition are set out herein, and seldom does a showing of a lack of courtesy during a deposition well serve your own client.

4. Before starting the deposition see that you advise the party(ies) to be deposed of the restroom and other facilities for their comfort and convenience.

AT THE START OF THE DEPOSITION:

1. At the deposition, the Court Reporter will first swear in the witness;

2. Next, the Court Reporter will ask how the deposition is to be taken, i.e. "under the Rules", which refers to the limited objections as set out in Rule 199.5(e) TRCP (i.e. objections are, as to questions, limited to "Objection, leading" and "Objection, form" and as to responses is limited to "Objection, non-responsive". These objections are waived if not stated as phrased ruing the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court. Read this Rule 199.5(e) TRCP carefully to assure you don't jeopardize either your objections or subject your client or yourself to sanctions.

3. The deposing attorney should satisfy himself or herself, by interrogation, first that whether the other party has been deposed before and/or understands what the deposition purpose is. Also there should be a requested agreement that if the party being deposed does not understand the question, they will say so, rather than answering first; that they will say "yes" instead of "uh huh" and "no" instead of "huh uh"; that will give verbal responses instead of nods of the head; and especially that the party being deposed will wait to answer until the deposing attorney completes a question, with a promise that the deposing attorney will let the witness finish an answer before starting the next question, to assure that the Court Reporter gets a good record, as he or she cannot record both parties talking at once.

PURPOSES OF A DEPOSITION:
There are essentially four purposes of the deposing attorney, for taking a deposition:

1. To size up the witness, i.e. by appearance, demeanor, responsiveness and how a jury will see the witness.

2. To see what the witness will admit to, hence what may not need to proved by other means.

3. To see what you can discover that you didn't know about the case before, which may be of value to your side of the litigation.

4. To give the taker of the deposition recorded testimony, under oath, as ammunition to impeach the witness at trial, if the witness changes his or her testimony when later testifying at trial.

PRE-DEPOSITION PREPARATION SESSIONS WITH YOUR CLIENT:
[Suggestions on preparing your client at a meeting a day or more before their deposition]

1. DRESS. Request your clients to appear at deposition dressed as they would for court. The reasons:

{a} It gives you a chance to see what your client considers appropriate dress for court, so you can guide them if they don't appear appropriately dressed at the deposition (if not a good appearance, have them ready to apologize with some excuse why they appeared dressed as they did at the deposition).

{b} It gives you and your client an opportunity to make a good appearance on the other attorney (and their carrier) thereby bolstering your negotiating position with the other party, attorney and their insured.

{c} A suit and tie may not be necessary, as the client should dress appropriate to their position in life. However, clean clothes and body are important, regardless of the type of clothing.

2. "DO"s and "DON'T"s. Here is a General Demeanor "DO" and "DON'T" checklist to go over with clients (stated as you would state to the client):

{a} Speak up so everyone can hear you. It is also important to sound positive and let the opposing attorney know your client will be heard by the Judge and Jury.

{b} Wait to answer, until the other attorney finishes the question. A court reporter has difficulty trying to record accurately two people speaking at the same time.

{c} Say "yes" or "no" instead of "uh huh" and "huh uh". Don't nod your head for answers. The Court Reporter must have audible, understandable answers to assure accuracy in recording your deposition responses.

{d} Don't smoke or chew gum (or worse).

{e} Avoid unnecessary gesturing.

{f} Be courteous, but don't joke with or allow the other attorney to get chummy with you. The other attorney's job is, in part, to confine your case to the least payment possible, so don't help them do that by your own demeanor.

{g} Keep your cool. Under no circumstances lose your temper with opposing counsel nor respond by asking the other attorney a question in response to the other attorney's question. If opposing counsel learns that he or she can get you rattled, mad or shake you up, they will have a valuable tool to use at trial against you.

{h} Sit up straight, talk slowly and deliberately so your response can be understood. As you testify at deposition, or in trial, your appearance must be that you know what you are talking about; you are telling the truth; you are giving your answers with honest, clarity based on facts.

3. TRUTHFULNESS. The necessity of being truthful cannot be over stated. This means you must be accurate and not guess at answers. Negligently false answers, as well as intentionally false answers have a way of catching up at embarrassing times. Be careful in your responses, being careful to be truthful, without exaggeration or guessing, so that you don't have to worry about what you said last.

4. LIMIT YOUR ANSWER AND DON'T VOLUNTEER. This is not a trial. Limit your response to only what is asked, unless it is important to state more, to keep the record from showing something different than the truth. Your additional testimony will come out at trial. You should not give more answer than you are asked for and never volunteer anything, unless you have discussed it with me and come to an agreement that it helps your case. Again, you have time at trial to state other things.

5. DON'T GO ALONG TO GET ALONG. Don't agree with the other attorney in your answer, unless you actually agree with the question. Good attorneys will often get you agreeing with answers to their questions as a prelude to a difficult question, and when they have you agreeing with them, they may throw in a question, which if you agree with it, can damage or destroy your case. If the same question were asked separately, you might not agree with it, but in line with other questions which you are agreeing, it is easy to just agree with the damaging question also, without thinking.

6. LISTEN AND THINK BEFORE YOU ANSWER QUESTIONS. (Special caution questions)

{a} Questions which assume a fact. Such as "when did you quit beating your wife {husband}".

{b} Questions in the alternative. Such as "was the traffic today on Hwy 59 light or heavy". Maybe there was none or it was moderate, so you are not married to the question asked, if the alternatives don't fit the facts. State that the alternatives are neither correct and then give the correct answer.

{c} Questions where the other attorney paraphrases what you said. Listen carefully, and if the other attorney accidentally {or intentionally, but that is rare} misstates what your prior response was, in asking another question, don't hesitate to correct the other attorney politely, by stating that he or she has misstated your previous answer. If a question makes an assumption, be sure you agree with the assumption before you answer.

{d} Time, Speed & Distance questions. Don't give specific time, speed or distance, if you aren't reasonably sure. For instance if you don't know distances very well in feet and the question is about when you saw another vehicle, you can respond with something familiar which you do know and the jury will understand, such as "it couldn't have been over 3 or 4 car lengths" before the collision OR "he was traveling quite a bit faster than the rest of the traffic, and I assume that they were traveling at close to the speed limit or a little over".

7. DON'T EXAGGERATE BUT ALSO DON'T MINIMIZE. Exaggeration can be fatal to your answers. If you complain of something which is medically impossible to be connected with an injury, the jury may chose not to believe anything else you say. However, more clients minimize their condition than exaggerate and that also can damage your case and recovery. It is not uncommon for a person to say at the scene of a collision that they are not hurt, when later medical attention proves that they were in fact injured seriously. Likewise, a macho client can say at a deposition that they are fully recovered, when in fact they have been complaining to their attorney and friends that they still have pain and problems from their injury. In short, tell it like it is, without exaggeration or minimization.

8. BE DETAILED. In your responses, state details not generalizations. Telling a jury you hurt isn't going to get the job done. You need to state how and where you hurt, how often, what you do for it etc. If you are explaining things you can no longer do, you cannot say "there are a lot of things I can't do any longer" because that sounds self-serving. If you state in detail just what you used to do and how you enjoyed doing that and can no longer do or the limitations you now suffer, a jury can better empathize with you.

9. YOUR PERSONAL BACKGROUND WILL PROBABLY BE EXPLORED. The other attorney will probably go into, and by law can go into, personal matters which you may not wish to discuss, and which may not be admissible at trial. However, the other attorney is allowed to do so, so unless I, as your attorney, object and instruct you not to answer, you should answer those matter. These may include such things as:

{a} marital background;

{b} children (in and out of marriage)

{c} educational background;

{d} employment history (be prepared to explain job changes and reasons)

{e} income (including tax records--and especially how your injury has affected your earning capacity and caused you a loss of earnings)

{f} history of places where you have resided (including reasons for moving)

{g} criminal background, if any, including arrests, convictions, probations etc. (including where, when and why)

{h} your driving background (if a driving case)

{i} religious affiliation (seldom brought up, but could be)

10. PREVIOUS WRITTEN STATEMENTS. You may be asked if you have given or made any prior written statement. Think about this before deposition and be prepared to discuss same as you may be questioned on it. Try to read any prior statements again.

11. SKETCHING A DIAGRAM. At depositions it is common for the other attorney to ask you to sketch a diagram of the collision scene.

12. DEPOSITION OBJECTIONS. Your attorney will make objections. You making objections is bad policy, as it makes it appear that you may be hiding something or don't want the jury to know everything. Your attorney will object for the record, which the Court may later take up, but you should then go ahead and answer the question, unless it is something which you attorney instructs you not to answer because it is improper, in which case the matter may have to be ruled upon by a Judge prior to continuing the deposition. However, respond slow enough to the questions, so that you give your attorney a chance to object, before your answer is on the record.

13. YOUR ATTORNEY'S QUESTION. Normally your attorney will not ask you any questions, but reserve all questions until the time of trial. However, if your attorney believes you have misunderstood a question or that you need to clarify a matter, your attorney may make an inquiry into that area. If your attorney asks you about that area, it is usually so that you will know that response is a problem or needs clarification. Therefore, usually you will not want to simply reiterate what you said before, thereby compounding the problem, but think about why your attorney is getting you back into that area, so that you can clarify or correct your prior answer before the deposition is concluded.

14. YOU CAN READ AND SIGN DEPOSITION BEFORE IT IS FILED. You have the right, within 20 days, after the original of the transcript of your deposition is provided to your attorney by the court reporter who took the deposition, to read, correct and sign the deposition transcript (Rule 203.1 TRCP). The changes must be made on a separate page and no portion of the original deposition can be altered or obliterated. It is important to do this, so that any errors made can be corrected before trial.

15. FACTS OF THE CASE--LIABILITY. The other attorney will almost certainly ask you questions about the facts of the case. Therefore it is very important to go over with your attorney, in deposition preparation, the facts about the case and understand what is really important to understand and be clear on. It is important to understand from the other attorney's side, what that attorney may dwell upon in order to attempt to minimize or destroy in your case, in order to prevail for the other side. Therefore you and your attorney together must understand and agree upon the facts and how to present them during deposition. Again, truthfulness is important, but understanding how to state the facts and not to volunteer or go beyond the scope of the other attorney's questions is important to understand and follow. It is important that you understand that the burden is on you to prove liability, not on the Defendant to prove his or her lack of liability. It is important to understand the defenses which the Defendant may need to set up and prove, so that you don't do that for the other party in your answers.

16. FACTS OF THE CASE--INJURY AND DAMAGES--NATURE AND EXTENT. The other attorney will almost certainly question you about your injury and damages. On discussing these, it is important not to exaggerate, but you also must not minimize your injuries and damages. You need to be specific about where you hurt, how it hurts, and what you understand your injury to be. However, in testifying, do not give medical analysis, opinions etc. You should primarily rely upon and refer the other attorney to the medical records to prove up your actual condition and try not to contradict the medical reports, tests, bills etc. You should set out your pain, complaints and other matters which you have experienced, in your claim, but let the medical and billing records do most of the proving up of the medical facts and expenses in this case. This way the other attorney doesn't have your testimony to conflict with the healthcare providers in your case.

17. PRIOR AND PRESENT MEDICAL QUESTIONS ON THIS CLAIM. Along with the information in the point just set out above, the other attorney has a right to inquire about your present and past medical condition, including, but not limited to injuries and illnesses, from the facts which you personally know. These questions are a proper area of discovery and questioning by the other attorney. If you have a prior injury or illness which could affect your claim of injury or damages in this case, the other attorney may properly interrogate you about such injury(ies) and/or illness(es). Talk with your attorney about these prior injury(ies) and/or illness(es) during the deposition preparation session so you may be prepared on those areas.

18. PROPERTY DAMAGE. You will be asked questions about any claim of property damage. Be prepared before the deposition to discuss why your property was worth as much as you claim it to have been, if destroyed, or why the repair bills are as much as they are, if not totally destroyed. Be prepared to discuss any special benefit or value which what you paid or added to your property, such as an automobile, may have added to the value of your property before the collision. Be prepared to discuss the method which you and your attorney used to arrive at the value of your property. Also be prepared to discuss the other items of claim, such as towing; storage; tag, tax and license plates; loss of use; time and expense of obtaining valuations and searching for another vehicle; and other matters.

19. MANAGEMENT OF THE LAWSUIT QUESTIONS. It is doubtful that the other attorney will ask you any questions about the management of your side of the law suit, such as "what did you and your attorney discuss about the scene of the collision" or something similar. However, if that should occur, your attorney will object and you should not respond, as attorney-client conversations are privileged and the other attorney cannot question on that area.

20. DAMAGES-USUAL AND OTHER. You and your attorney need to discuss proving up your damages and the deposition testimony you need to give on that area. If you claim any other damages, you and your attorney need to discuss them. Damages, usual and other, consist of such things as:

{a} Property damages: This includes the loss of property and/or repair, but also includes towing and storage fees, loss of use, tag, tax and license fees and possibly loss of profit from the use of the property).

{b} Medical expenses: This includes both past medical and other healthcare expenses and also future projected expenses for medical treatment. Included are ambulance (including life flight and other transportation for any treatment, including your own vehicle at a fair rate per mile), hospital, doctors, therapists, radiologists, prosthesis and other mechanical and electronic devices, medication, tests and all other healthcare charges.

{c} Loss of earnings: This includes loss of past wages, including raises which may have been lost during the period of disability; sacrificing your vacation time to avoid loss of time from work so you didn't lose any actual wages; loss of promotion.

{d} Loss of earning capacity: This includes the loss or limitation of future earning capacity, which would include those things set out above which go along with not being able to work or work effectively, such as raises, promotions and other benefits. It also would include any physical or mental limitations on getting ahead in the work place, as a result of the injury suffered.

{e} Special or consequential damages: This includes past and future: pain and suffering, mental anguish, emotional trauma and loss of consortium (see below).

{f} Loss of consortium: This is loss of services of one spouse, parent or child to the other spouse, child or parent. It is a cause of action by the losing party of the injured party's services. It includes such things as loss of household services, physical relationship, including usual sexual relations together, parenting to the child, loss of the income to a spouse or a child or parent which otherwise would reasonably have been paid, but because of the injury was not able to be provided. This is not an easy area to prove up with case law, but it is an element which needs to be discussed, and if pled, be ready to discuss on the deposition.

{g} Disfigurement: Something which prevents a person from doing their job, such as an amputation or if their occupation is affected by appearance, and/or the changing of a person's appearance to make them less attractive or embarrassing to look at, such as a scar or amputation.

{h} Loss of future profits: Generally this arises in a business setting, not as a result of a collision or other injury type of claim, but it could, such as if the person in a collision was driving a vehicle used in their business and the combination of your injuries and property damage caused you to suffer a business loss.

{i} Damages for intentional infliction of physical and/or emotional harm. This requires you to prove up those your damages.

1. 1986 edition of Knowles Lawbook Publishing, Inc.'s Texas Depositions and I acknowledge, with appreciation, that book's publisher and especially the authors of that Volume, James L. Branton and Jim D. Lovett, both former Presidents of the TTLA.

2. O'Connor's Texas Rules * Civil Trials 2003 by Jones McClure Publishing, Inc.