Before you start taking a deposition, you need to “admonish” the deponent. It’s just a way of laying down the ground rules and making sure the deponent is fully informed. Here are 10 admonishments you should make before kicking off the questions.
Admonishing the deponent benefits everyone: the deponent gets informed, and the examiner is protected against the deponent trying to weasel out of a damaging statement by later claiming a misunderstanding about the nature of the deposition process. In his blog post The Importance of Deposition Admonitions: Part 1, Shahrad Milanfar cautions that seeing admonitions as simply “an inconvenience” could cost you “valuable information in your case.”
And when admonitions are part of the record before the examination begins, the deposition testimony becomes useful as an admissible prior inconsistent statement if the deponent later contradicts statements made at the deposition. See Evid C §1235.
As the examiner, you want to be sure that the record shows the deponent’s understanding of the deposition procedure. So after the court reporter has administered the oath to the deponent, and you’re ready to proceed, you should admonish the deponent by making short statements on the record and eliciting the deponent’s understanding of each admonition given.
There’s no specific form of admonishment that you need to follow, but always cover these 10 key points:
- Prior depositions. Ask whether the deponent has ever been deposed before and, if so, the specifics about that lawsuit, the role of the deponent in the lawsuit, and its conclusion. This will show the deponent’s familiarity with the requirements of testifying and will determine whether the deponent has been involved in related litigation or proceedings.
- The oath effect. Even though the deposition is being taken in a relatively informal setting, remind the deponent that he or she is under oath, has sworn to tell the truth, and the effect of that oath is the same as if he or she was testifying in court.
- Audible answers. Tell the deponent to answer audibly and only after the examiner has finished speaking, so the court reporter can take down each person’s words with only one person speaking at a time.
- Clear questions. Ask the deponent to advise the examining attorney if any question is unclear in any way, after which the examining attorney will reword the question.
- No guessing. Tell the deponent not to guess when providing responses but, if appropriate, provide estimates based on his or her best recollection.
- Use words, not gestures. If a question calls for a yes or no answer, tell the deponent to answer “yes” or “no” rather than with a nod or a shake of the head.
- Right to break. Advise the deponent that he or she is entitled to request a break anytime to confer with counsel, to use the restroom, or for any other reason.
- Heads up on objections. Explain that other attorneys may make objections to questions or answers; they are objections for the judge to consider later. Advise the deponent that he or she is required to answer unless, as a party, he or she is told not to by counsel.
- Recording rules. Tell the deponent that the court reporter is recording all the questions, answers, and objections and will reduce that information to booklet form after the deposition ends, at which point the deponent will have the opportunity to read the transcript and correct any inaccuracies.
- Changing testimony. Explain that if the deponent makes changes in his or her testimony that are inconsistent with the answers given during the deposition, the examining attorney will be entitled to comment on those discrepancies at trial to question the deponent’s veracity.
For everything you need to know about taking depositions, including sample admonitions to give during a deposition, turn to CEB’s California Civil Discovery Practice, chapter 6. Also check out CEB’s program Preparing for, Taking & Defending Depositions, available On Demand.
Related CEB blog posts:
- What To Expect When You’re Expecting a Deposition: A Checklist for Preparing the Deponent
- I Object! Know What Objections to Make at a Deposition
- Do You Really Want it Recorded?
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