Demystifying Depositions: Effective Use of Documents

Read more from the Demystifying Depositions Series: Admonitions | The Funnel Technique | Obtaining Admission

As you are getting more comfortable with the deposition process, one thing that can throw off your game is having to use documents. The mechanics of organizing all your papers, handing them to the court reporter, etc., can take a little getting used to — not to mention laying a proper foundation and capturing all the pertinent information regarding the document.

The Function of Documents in Depositions

Chances are, documents are going to be a part of practically every deposition you take in your career. Using documents in a deposition can serve a number of useful functions:

• Generating topics for you to explore at the deposition
• Refreshing a witness’s memory
• Authenticating the document for later use
• Impeaching the witness
• Forcing party statements
• Exploring claims of privilege

Documents can be an important part of your deposition preparation process. After you gather all documents that might be relevant to the deposition, it is usually best to arrange them either by topic or in chronological order. Once you have done this, go through them and consider whether the witness has written or received a document within the relevant time frame, and what issues in the case are affected by the witness’s actions. The documents may generate questions about the witness or background in the case.

Preparing the Documents

Different attorneys use different methods of noting how they will use each document in the deposition. Some may note what document goes with which topic on their deposition outline, which serves as a general reminder during the deposition. Others write notes directly on their copy of the document, or on sticky notes that go on top of the document, to remind them of the specific questions they want to ask. The approach is up to you and how you work best.

When preparing to use the documents at the deposition, make sure you have at least three copies of each document clipped together: one for opposing counsel, one for the court reporter and witness, and one for you. If there are more parties or attorneys present, you will need to bring enough copies for everyone. You will hand a document to the court reporter, and have him or her mark the exhibit, starting with 1 or A. Generally, you’d ask, “Please mark this document as Exhibit A,” or something along those lines. You can premark the exhibits if you prefer to save time. The court reporter will then hand the exhibit to the witness.

Using the Documents

Next, give the witness time to read the exhibit fully. Ask the witness, “Have you had sufficient time to review the exhibit?” Don’t let him weasel out of being familiar with the document; if the witness jokes, “I’ve skimmed it,” ask him to read it fully. This way, he cannot claim at trial that he did not have time to fully read it. If the document is lengthy, point him to key pages or paragraphs and make sure he fully familiarizes himself with those portions.

You will then want to lay the proper foundation for the exhibit, so you can use the document later in your case. Ask the witness what the document is, and whether and when he has seen it before. Ask him whether it looks different or incomplete from what he saw before. If he wrote it, ask him to verify his email address or handwriting. If he is being squirrely and tells you he doesn’t remember receiving an email, try asking him to confirm the email in the “to” line, then ask if he has any reason to believe that the email did not come to his inbox. Chances are he will say no.

When discussing an exhibit with the witness, consider referring to the exhibit by a name, instead of its exhibit number — for example, “Tell me about the terms of this 2013 supplier contract,” rather than “Tell me about the terms of Exhibit 14.” If you are using the deposition testimony later in a motion or at trial, you will be able to skip the added, awkward step of establishing that Exhibit 14 is the 2013 supplier contract. The testimony will be much more effective to use. However, make sure to give it a name that is sufficiently detailed to actually identify it, not just “the email,” “the letter,” or “the contract.” If you do this, you not will have to go through the same process later of establishing which letter, email, or contract the witness was discussing.

These are just a few tips for dealing with exhibits, but the topic is complex. If you want more information about laying a foundation, inquiring about privilege, refreshing a witness’s recollection, or other topics, consider taking a NITA deposition skills class, or referring to their text: The Effective Deposition: Techniques and Strategies that Work.