4 Preliminary Questions for Every Deposition You Take

185496686Before you get to the substantive questions, make sure to ask these four important preliminary questions in every deposition you take.

  1. Is the deponent on medication or suffering from an illness? Ask questions about what medications, if any, the deponent has taken that day, the pharmaceutical identity of each of them, or if unknown, the name of the prescribing physician. You may be able to enlist defending counsel’s assistance to furnish the names of any medications and their dosages by letter after the deposition. Similarly, ask if the deponent is suffering from any illness that would affect his or her ability to recall events. Make clear that it’s necessary to ask such seemingly personal health questions to establish on the record that any medical problems or medications won’t prevent the deponent from testifying accurately.
  2. What’s the deponent’s familiarity with the English language? Ask whether the deponent speaks English or has any difficulty understanding it. It’s good practice to apply the same rule to depositions that guide the use of interpreters at trial. At trial, an interpreter’s services are mandatory if the witness is incapable of understanding English or of expressing himself or herself “so as to be understood directly by counsel, court, and jury.” Evid C §752(a).
  3. Has the deponent been deposed before? Always ask the deponent whether he or she has been deposed before and, if so, the dates, name, and county of any former lawsuit, the role of the deponent in the lawsuit (e.g., plaintiff, defendant, nonparty), the type of case or its subject matter, and its conclusion (e.g., trial, settlement). Asking the deponent about prior experiences in testifying can be useful for at least two reasons: (1) showing the deponent’s familiarity with the requirements of testifying will limit his or her ability to vary the testimony given at a subsequent hearing or trial by feigning ignorance of the deposition process and (2) determining that the deponent has been involved in related litigation or proceedings may lead to impeachment evidence by revealing prior inconsistent statements in transcripts from past depositions, administrative hearings, or trial.
  4. If the deponent is an organization, is its representative properly designated? If, under CCP §2025.230, the deponent named in the notice or subpoena is not a natural person but a corporation, partnership, union, or other entity, ask additional questions before the examination begins of the representative appearing on behalf of that organization. For example: “Are you designated by _ _ _ _ _ _ Corporation under CCP §2025.230 on all matters set out in the notice of deposition, which the reporter has marked as Exhibit A?” If the answer is “No,” find out precisely which individuals the organization has designated on each matter set out in the deposition notice. You may want to go off the record and confer with the organization’s counsel on this subject, if he or she is present. Often you can make arrangements to depose additional representatives on other matters designated in the notice or subpoena by stipulation.

Want more practical tips for taking and defending oral depositions? Turn to CEB’s California Civil Discovery Practice, chapter 6. Also check out CEB’s program Preparing for, Taking & Defending Depositions, available On Demand.

Other CEBblog™ posts on taking depositions:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

9 Responses

  1. Ask if/what they reviewed in preparation of the deposition.
    Did they discuss case/deposition with anyone (other than their counsel).

  2. Great addition to the list, Sanford!

  3. For the PMK depositions (2025.230) I like: “If you wanted to get some information about [subject], who would you ask?” If it is someone other than the witness himself, ask whether the witness consulted with that person in preparing for the deposition.

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