Civil Litigation Discovery Legal Topics

Handling Nonverbal Depo Responses

fingersUnless the deposition is video or audio recorded, the record won’t reflect nonverbal responses. This can be a problem if the nonverbal response is material. Here’s how it comes up and how you can deal with it.

Without video or audio recording, there’s no way to distinguish between a shout and a whisper. There’s also no way to clarify a witness’s estimates based on objects in the examination room (e.g., “about the size of this table,” “the same distance as from here to the wall”) or the holding up of body parts.

And without video, the record probably won’t reflect whether defending counsel and the witness inappropriately confer or review documents during the deposition.

If such nonverbal conduct occurs and it’s material to the deposition, here’s what to do: Describe it on the record.

Sure, you can put it all in a declaration on a motion to appoint a referee at a deposition, but stating that defending counsel shouted or constantly coached the witness is a poor substitute for a statement to that effect on the record that’s not contradicted contemporaneously.

When you’re dealing with an estimate that only those in the examination room understand visually, you can put it into measurable units in your next question, e.g., “Do you agree that the distance you describe as from here to the wall is roughly 20 feet?” And then follow it up with a request to counsel that they put any disagreement with the measurement on the record at that time.

This method of getting nonverbal responses on the record can only go so far, of course. If you anticipate having the deponent reenact some event or draw something on paper, it would be wise to notice and take a video-recorded deposition.

For everything you need to know about taking and defending depositions, turn to CEB’s California Civil Discovery Practice, chap 6.

Other CEBblog™ posts on taking depositions:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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