deposition handbook 4th (2007)

4th edition
Nolo’s
Deposition
Handbook
by Attorneys Paul Bergman & Albert J. Moore
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4th edition
Nolo’s
Deposition
Handbook
by Attorneys Paul Bergman & Albert J. Moore
FOURTH EDITION MAY 2007
Editor EMI
LY DOSKOW
Cover Photography TONYA PERME (www.tonyaperme.com)
Production JES
SICA STERLING
Proofreading RO
BERT WELLS
Index NAN
CY BALL
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ELTA PRINTING SOLUTIONS, INC.
Bergman, Paul, 1943-
Nolo’s deposition handbook / by Paul Bergman & Albert J. Moore 4th ed.
p. cm.
Includes index.
ISBN-13: 978-1-4133-0626-2 (alk. paper)
ISBN-10: 1-4133-0626-8 (alk. paper)
1. Depositions United States Popular works. 2. Discovery (Law) United
States Popular works. I. Moore, Albert J. II. Nolo (Firm) III. Title. IV. Title: Deposition
handbook.
KF8900.B44 2007
347.73'72 dc22
2005040657

Copyright © 1999, 2001, 2005, and 2007 b
y Paul Bergman and Albert J. Moore.
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Dedication
To all the nonlawyers who seek to understand the civil justice system and to use
it to vindicate their legal rights.
—PB, AJM
Acknowledgments
We are grateful to Jake Warner and Steve Elias, who established and have
continued a tradition of excellence at Nolo and who pushed us (occasionally
painfully!) to produce a book that might be consistent with that tradition. ank
y
ou also to Lulu Cornell and all the Nolo employees for using their design and
production skills on our behalf.
ank y
ou to David Binder (our esteemed UCLA law school colleague)
and Sherrill Johnson, excellent lawyers whose wisdom and years of deposition
practice are reflected throughout the book.
ank you to excellent UCLA law librarians June Kim and Alice Ko for their

extensive research help on the Federal Rules of Civil Procedure and their state
counter parts.
—PB, AJM

Table of Contents
Introduction: Your Deposition Companion
Part One: Being Deposed 3
Part Two: Taking and Defending Depositions 4
The Federal Rules of Civil Procedure (FRCP) 5
Finding the Deposition Rules That Apply to You 5
Local Rules 6
Part One
1
An Overview of Deposition Procedures
Depositions in a Nutshell 11
Providing Notice of a Deposition 11
Deposition Scheduling Requirements 13
Rescheduling Your Deposition 14
Avoiding a Deposition Altogether 16
Duration of Depositions 16
Deposition Attendees 17
Document Production at Depositions 23
Reviewing and Signing Your Deposition 24
2
Using Depositions in a Lawsuit
Using Depositions Before a Trial 26
Using Depositions in a Trial 31
3
Preparing to Give Deposition Testimony
Parties Represented by Attorneys 38

Parties Representing Themselves 40
Nonparty Witnesses 53
4
Responding to Questions
The Golden Rules for Responding to Questions 59
Responding to Common Questions 64
Responding to Trick Questions 66
Responding to Requests for Future Action 77
Finishing Interrupted Answers 79
Handling Fatigue 80
Objections 82
Reviewing and Signing Your Deposition 83
5
Beginning a Deposition: “e Usual Admonitions”
Admonitions Defined 86
Purposes of Admonitions 87
Admonitions: Examples and Explanations 87
6
Background Questions
Hidden Agendas 96
Legitimacy of Background Questions 98
Your Employment History 99
Your Educational Background 101
Other Background Topics 103
7
Questions You Can Legally Refuse to Answer
Privileged Communications 106
The Work Product Privilege 113
Evidence of Criminal Activity 115
Private Information 117

8
Expert Witness Deponents
The Difference Between Expert and Nonexpert Witnesses 122
Predeposition Disclosures 128
Typical Predeposition Involvement 129
The Importance of Thorough Deposition Preparation 132
The Predeposition Planning Meeting 134
Typical Deposition Questioning 135
Part Two
9
e Lay of the Discovery Landscape
The Purposes of Discovery 150
Impediments to Achieving Discovery Goals 151
Voluntary Disclosure 152
Informal Discovery 153
Discovery Plans 154
General Rules of Discovery Questioning 155
Enforcing Discovery Rules 156
An Overview of Formal Discovery Methods 157
10
Defending a Deposition
Preparing for the Deposition 169
Listening Carefully 170
Eliciting Additional Information After Your Opponent’s Questioning 171
Entering Into Stipulations 175
Making Objections 175
Terminating a Deposition 190
11
Taking a Deposition: Deposing a “Hostile” Witness
Should You Take a Deposition? 197

Deciding Whom to Depose 198
Preparing to Take a Deposition 200
Beginning the Deposition: Preliminary Questioning 204
The Two Basic Forms of Questions 204
Using the Two Basic Forms of Questions 206
Using Documents 215
Responding to an Evasive Witness 220
Depositions Arranged by Your Opponent 222
12
Taking a Deposition: Responding to a Defending
Attorney’s Roadblocks
Responding to Objections 226
Responding to Instructions Not to Answer 241
Responding to Coaching of the Deponent 247
The Bottom Line 252
13
Taking a Deposition: Deposing a “Friendly” Witness
When to Depose a Friendly Witness 254
Offering Deposition Testimony Into Evidence 255
Eliciting All Favorable Evidence 255
Complying With Evidence Rules 256
14
Videotaped Depositions
The Rules of Videotaped Depositions 261
When Should You Videotape a Deposition? 264
Disadvantages of Videotaping 266
Taking an Effective Videotaped Deposition 267
Defending a Videotaped Deposition 269
G
Glossary

A
Appendix A: Excerpts from the Federal Rules of
Civil Procedure (FRCP)
B
Appendix B: State Discovery and Deposition Rules
C
Appendix C: Sample Forms
Index

Your Deposition Companion
Part One: Being Deposed 3
Part Two: Taking and Defending Depositions 4
e Federal Rules of Civil Procedure (FRCP) 5
Finding the Deposition Rules at Apply to You 5
Federal Court Cases 5
State Court Cases 6
Local Rules 6
I
I N T R O D U C T I O N
2 | NOLO’S DEPOSITION HANDBOOK
D
epositions enable the parties to
a lawsuit (people who are suing,
called “plaintiffs,” and people
who are being sued, called “defendants”)
to question each other and other witnesses
befor
e going to court. A deposition is like
testimony in court—under oath—but it
occurs before trial, outside the courtroom,

and without a judge or jur
y present. While
depositions have a number of uses, parties
take depositions primarily in the hope of
uncovering information that supports their
legal claims and undermines the other side’s
legal claims.
is book explains and illustrates
deposition rules, procedures, and strategies
in civil cases (legal disputes between private
par
ties). It does not cover criminal cases.
Depositions are one of several methods
of investigating the facts of a case before
trial that together constitute what lawyers
call “formal discovery” (other methods of
formal discovery are covered in Chapter
9). is book focuses on depositions for a
number of important reasons:
•
Information uncovered during
depositions is often the key to a case’s
outcome, whether the case is resolved
through a voluntary settlement by the
parties (as is usually true), a summary
judgment (a decision by a judge before
the trial begins), or a trial.
•
While other formal discovery methods
rely on written questions and answers

drafted mainly by lawyers, depositions
consist of live, oral testimony by
deponents (people who are questioned
at depositions), including plaintiffs,
defendants, and nonparty witnesses
(witnesses with case-related information
but no formal involvement in a
lawsuit). Parties often have days or even
weeks to respond to written discovery
requests, while deponents must answer
deposition questions immediately.
De
positions, therefore, tend to be far
more stressful than other forms of
formal discovery, so you’ll want to
know in advance exactly what will
happen and how to prepare.
•
Because depositions typically take place
in private conference rooms rather than
in public courtrooms, only people who
have testified at deposition before are
likely to understand what will happen
at a deposition and the importance of
their testimony.
•
Depositions are usually the most
expensive discovery tool. If you’re a
party and you hire an attorney, you’ll
incur attorney’s fees if your attorney

takes or defends a deposition.
If
you’re the party taking the deposition,
you’ll also have to pay for a court
reporter to transcribe the testimony, a
videographer to videotape it, or both.
INTRODUCTION | YOUR DEPOSITION COMPANION | 3
Part One: Being Deposed
is book is divided into two parts. Part
One (Chapters 1 through 8) provides
information primarily for the person who is
being deposed (questioned under oath at a
deposition). P
art Two (Chapters 9 through
14) explains how to take a deposition or
defend a party or witness on your side who
is being deposed.
P
art One explains deposition rules and
procedures from the perspective of a depo-
nent (the person being asked questions).
You may be a deponent because:
• You’re a party (plaintiff or defendant) to
a lawsuit. For example, you’re a plaintiff
suing the defendant, your former
employer, for wrongful termination;
the employer’s lawyer deposes you.
•
You’re a nonparty witness who knows
case-related information. For example,

you’re a bystander who observed a
collision between two cars whose drivers
are now the parties to a lawsuit. e
driver of either car might depose you.
•
You’re an expert witness who has been
hired by a party to investigate a case
and render opinions based on your
specialized knowledge. For example,
you are a medical expert who has
been retained by the plaintiff in a
medical malpractice case to explain
why the defendant doctor’s treatment
of the plaintiff was substandard; the
defendant chooses to depose you.
No matter what type of deponent y
ou
are, and whether or not you are represented
b
y a lawyer, you should read Part One to
learn:
•
what to do (and not do) in preparation
for your deposition (see Chapter 3)
•
what to do if you’re asked to bring
documents to the deposition (see
Chapter 3)
•
how far you can be required to travel

for a deposition and whether you
are entitled to be paid for time spent
testifying (see Chapter 1)
•
the three “Golden Rules” for answering
deposition questions (see Chapter 4)
•
what questions you have a legal right to
refuse to answer (see Chapter 7)
•
whether you have to answer questions
that your lawyers objects to (see
Chapter 4)
•
how to deal with “trick” questions
that many lawyers love to ask during
depositions (see Chapter 4)
•
what to do if the deposing lawyer is
verbally abusive (see Chapter 4)
•
what warnings you’ll probably be given
at the beginning of the deposition (see
Chapter 5), and
•
if you’re an expert witness, what your
role will be in the process before trial
and what types of questions you’re
likely to be asked at deposition (see
Chapter 8).

4 | NOLO’S DEPOSITION HANDBOOK
Part Two: Taking and
Defending Depositions
Part Two explains deposition rules and
procedures from the perspective of a
party who does not have a lawyer and is
representing him- or herself. Most people
in the legal system refer to people who
represent themselves as “pro per” or “pro
se” litigants. (“Pro se” means “in one’s own
behalf
” in Latin; a “litigant” is a party
engaged in the process of a lawsuit, also
called “litigation.”)
W
hen representing yourself, you may be
either:
•
e deposing party, the party who
arranges for and conducts the
deposition questioning. For example,
you’re a pro se defendant in an auto
accident case and you depose the
plaintiff, the driver of the other car.
•
e defending party, the party who is
present at a deposition arranged for
and conducted by your adversary (the
other side).
As a defending party, you

are entitled to be present at depositions
taken by your adversary and (among
other things) to question the deponent
after your adversary finishes his or her
questioning. For example, you’re a pro
se defendant in an auto accident case
and you defend the deposition the
plaintiff takes of a nonparty witness—
your friend who was a passenger in
your car at the time of the accident.
If y
ou’re representing yourself and either
taking or defending a deposition, you’ll
need to r
ead both Parts One and Two of
this book. In Part Two, you’ll learn about
such issues as:
•
how depositions compare to the other
methods of formal discovery (see
Chapter 9)
•
how to arrange for a deposition,
including how to require the deponent
to produce case-related documents (see
Chapters 9 and 10)
•
how to depose a “hostile” witness—one
whose testimony goes against you and
who may not want to discuss the case

with you (see Chapter 11)
•
how and when to depose a “friendly”
witness—one who supports your legal
claims (see Chapter 13)
•
how to respond when an opposing
lawyer engages in intimidating or other
improper behavior (see Chapters 10
and 12)
•
how to make and respond to objections
(see Chapters 10 and 12)
•
how to take and defend videotaped
depositions (see Chapter 14), and
•
whether to bring out helpful
information that your adversary has
overlooked (see Chapter 10).
INTRODUCTION | YOUR DEPOSITION COMPANION | 5
e Federal Rules of Civil
Procedure (FRCP)
e deposition rules and procedures
described in this book primarily come
from a set of laws known as the Federal
Rules of Civil P
rocedure. (Everyone
with a law degree calls them the “FRCP,”
so you’ll need to remember this bit of

alphabet soup
.) e FRCP establish general
procedures for civil cases in all federal
district courts (trial courts), from the time
you file the case initially through the final
judgment.
Rules 26 through 30, 32, 37,
and 45 are the main rules that govern
depositions. e text of these rules, current
as of the date this book was published, is
set for
th in Appendix A.
Most people using this book will be
involved with litigation at the state level,
not in a federal court. Nonetheless,
this book focuses on the FRCP not
only because they dictate federal court
procedures but also because state rules
follo
w them closely. e whole American
system of formal discovery before trial
(including depositions) began when
Congr
ess enacted the FRCP into law in
1938. ese rules were then gradually
adopted by the states. rough many
amendments o
ver the years, the FRCP has
remained the basis for all states’ discovery
practices.

In fact, many states have adopted
the FRCP more or less intact as their own,
down to the FRCP’s numbering system
and headings. States that have not adopted
the FRCP generally have rules that closely
mimic FRCP procedures.
Finding the Deposition
Rules at Apply to You
If you’re representing yourself in a lawsuit
and about to take or defend a deposition,
you’ll need to be familiar with the most
current version of the discovery and
deposition rules in your court. e sections
below will help you find those rules.
Federal Court Cases
If you’re representing yourself in a federal
court case, begin by reading through the
F
RCP discovery and deposition rules set
out in Appendix A. Of course, you’ll want
to check to see whether those rules have
been amended since the date of this book’s
publication.
One way to do so is to go to
a library. If you live or work near a law
library that’s open to the public, that’s the
best place to go to find the current version
of the F
RCP. However, even a large general
public library is likely to stock the latest

v
ersion of the FRCP.
You can also access the FRCP online. One
website that provides the current version
of the FRCP is maintained by the Cornell
University Law School Legal Information
Institute at www.law.cornell.edu/rules/
frcp/?. A second website through which you
6 | NOLO’S DEPOSITION HANDBOOK
can access the full text of the FRCP is the
Law Library Resource Xchange, at www.
llrx.com/courtrules. Or you can use Nolo’s
Self-Help Law Center at www.nolo.com.
WARNING
Always check for amendments to
the FRCP. The FRCP is often amended. For
example, “voluntary disclosure” requirements
(discussed in Chapter 9) first came into being
in the 1990s and were substantially modified
in 1999. Similarly, new provisions on electronic
discovery were added in 2006. Thus, if you’re
representing yourself in a federal case, you
must make sure that you have the current
version of the FRCP before embarking on
depositions and other forms of discovery.
State Court Cases
If you’re representing yourself in a state
court case, you’ll undoubtedly find that, as
mentioned above, your state’s procedures
will closely resemble those set forth in

t
he FRCP. Nevertheless, you’ll want to
consult your state’s deposition rules before
testifying at, arranging for, or defending a
deposition, because some procedures may
vary. For example, such issues as how much
advance notice you have to give a deponent
before taking a deposition and how much
money you may have to give to a nonparty
witness whose deposition you want to take
can vary from one state to another.
Failure to follow your state’s rules exactly
can have serious consequences. For example,
if your failure to make proper arrangements
causes a deposition to be canceled at the last
minute, you might have to reimburse your
a
dversary for the expenses of rescheduling.
Repeated mistakes might even lead a judge
to order that you not be allowed to conduct
discovery at all.
F
ollow the instructions in Appendix B
for finding your state’s rules, either in the
library or online.
Local Rules
Whether a case is in federal or state
court, you should also consult any “local
rules” that apply. e court in which a
case is filed may have adopted local rules

that supplement general rules governing
depositions and discovery, whether those
ar
e the Federal Rules of Civil Procedure or
your state laws. Local rules tend to relate
to things specific to your location, like how
local judges coordinate phone conferences
to discuss discovery disputes, or technical
issues such as how many copies of
documents must be submitted to the court
or the formatting of documents. Check
your local court’s website or telephone the
court clerk to find out whether local rules
exist and how you can get a copy.
●
Being Deposed
Part One (Chapters 1 through 8) gives all the information you will
need to prepare to have your deposition taken. Whether you are
deposed as a party to a lawsuit, a nonparty witness, or an expert
witness, P
art One has information that will help you testify effectively
and accurately. (For an overview of the topics addressed in Part One,
please see the introduction.)
1
P A R T

An Overview of
Deposition Procedures
Depositions in a Nutshell 11
Providing Notice of a Deposition 11

Types of Deposition Notices 11
Significance of a Deposition Notice 12
Contents of a Deposition Notice 12
Deposition Scheduling Requirements 13
Travel Requirements 13
Length of Advance Notice 13
Witness Fees 13
Rescheduling Your Deposition 14
Avoiding a Deposition Altogether 16
Duration of Depositions 16
Deposition Attendees 17
e Deponent 17
e Parties 18
Experts 19
Lawyers for the Parties 19
Lawyers for Nonparty Witnesses 20
e Court Reporter 22
Judges 22
1
C H A P T E R
10 | NOLO’S DEPOSITION HANDBOOK
e Deponent’s Friend or Relative 22
Other Observers 23
Document Production at Depositions 23
Reviewing and Signing Your Deposition 24
CHAPTER 1 | AN OVERVIEW OF DEPOSITION PROCEDURES | 11
T
his chapter is about deposition
procedures. Unless you have
had your deposition taken, these

procedures will likely be unfamiliar: Most
depositions take place in private conference
rooms rather than in public courtrooms.
(Yo
u may have seen depositions depicted in
films like Class Action and e Rainmaker,
but please don’t base your expectations
o
n that!) Along with other information,
this chapter describes how depositions are
organized, how you might be able to alter
the arrangements if necessary, and what role
each person at the deposition will play.
Depositions in a Nutshell
A deposition normally consists of a lawyer
(or a self-represented person) asking the
deponent (the person being deposed) ques-
tions. e deponent may be a party to the
lawsuit or a nonparty witness (someone
who may have case-related information,
such as a bystander who observes an auto
accident).
Depositions may seem informal
because they typically take place in confer-
ence r
ooms with no judge present. Yet do
not be fooled—they share many character-
istics with testimony in court during a trial.
For example, as the deponent you’ll be
placed under oath, and your testimony will

be recorded and transcribed by an official
cour
t reporter. (Increasingly, depositions
are videotaped as well. See Chapter 14.)
Moreover, because the overwhelming
percentage of cases settle prior to trial,
your deposition may be your only chance
to testify. us, lawyers often prepare
as carefully for depositions as for trial.
A
nd because what is said at a deposition
can have a major impact on the eventual
resolution of a dispute, deponents should
be as careful and as accurate in giving
deposition testimony as they would be in
testifying in a courtroom at trial.
Providing Notice
of a Deposition
A deposing party (a party planning to
take a deposition) has to give you advance
written notice of the deposition’s time and
place. is section explains these notice
procedures.
Types of Deposition Notices
Your deposition process will start when
you receive one of two types of notices.
W
hich one you get will depend on whether
you’re the plaintiff or defendant—a party
to the lawsuit.

If you aren’t a party, but a
bystander or other nonparty witness, you’ll
be personally served with a court order
usually called a “
Subpoena re Deposition.”
(See Sample Form #1 in Appendix C.) A
subpoena is a court order requiring you
to show up at the deposition, and they’re
required for nonparties.