Pre-Deposition Tips: How to Prepare to Take a Deposition- Plaintiff’s Perspective

by: Prince, Glover & Hayes Tuesday, May 25th, 2010

Steps of Preperation Continued

To really be ready to take a deposition, you need to know four things: the lawyer, the deponent, the subject matter and the rules.

The Rules

Noticing the Deposition

When you notice the deposition, prepare your notice and/or subpoena duces tecum with any additional document request. Preparation of the notice necessarily prompts the decision on when, where and how the deposition will be taken. If the defendant is a business entity, consult Rule 30(b)(6) of FRCP or ARCP for guidance on the preparation of you notice. Under Rule 30(b)(6) Federal and State, all you need to do is describe with reasonable particularity the matters on which you want the examination to cover. The business entity then furnishes a person to testify on it’s behalf with the matters that person will cover. The person must (“shall”) testify to matters known or reasonably available to the organization.

Rules of Civil Procedure

Both State and Federal Court Rules have rules that govern the taking of depositions. To adequately prepare to take a deposition, especially during the early years of deposition taking, you need to consult the Rules 26-32, Rules of Court, with special emphasis on Rule 30. The only portions that I discuss here are the sections that pertain to objections and instructing a witness not to answer.

As you know, objections are not required under the “usual stipulations” except as to the form of the question. Failure to make that objection results in a waiver of it at trial. Note that there are many ways a question can be defective in its form. Alabama case law says an objection voiced merely as “object to form” is a general objection and thus does not put the examiner on notice of the defect. Unless the trial judge comes to your rescue and rules it clearly obvious what was wrong in the question – you waived it.

A lot of lawyers will instruct the witness not to answer a question during the deposition. Please be aware that instruction is only appropriate when the answer would contain privileged information, or if the deposition has been limited by court order or if you are going to present a motion under Rule 30(d) which pertains to termination of the deposition for bad conduct by opposing counsel. Otherwise, an attorney is not authorized to instruct a witness or party not to answer.


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