Preparing for a Deposition - Part IV: The Questions

Check out other posts in this series: Part I: The Journey; Part II: The Players and Part III: The Process.

After the depositions rules are reviewed, the questioning will begin. It is important for a deponent to answer the question actually being asked. Sometimes deponents go off on a tangent, rambling for minutes on end when a simple yes or no will suffice. This needlessly slows down the deposition. It also may result in a deponent revealing information that the question did not call for. Therefore, a deponent should make sure that they understand the question and that they are providing an answer that is responsive to it.

Similarly, a deponent should not try to out-smart the attorney asking the questions. Sometimes deponents think that a deposition is their big opportunity to play attorney. They envision that moment when they reveal the smoking gun that will automatically make the other side fold and concede the case. The deponent then provides an overly-broad answer, or (worse) they volunteer information when no question was even asked.

Inevitably, that smoking gun in the room is the result of the deponent shooting themselves in the foot. They say something that substantially hurts their case, when their intention all along was to help it. Therefore, a deponent should not try to outsmart the attorney and simply answer the question being asked. If there is no question pending, the deponent should say nothing.

If any attorney objects during the deposition, the deponent should refrain from answering the question until provided further instructions. Generally-speaking, objections in non-videotaped depositions are appropriate only when one side is seeking to assert a privilege (i.e., the question calls for the deponent to reveal an attorney-client communication, or a conversation between married persons, or tries to get the deponent to admit to a crime) or object to the form of the question (i.e., the question itself was vague, argumentative, compound, etc.).

Attorneys sometimes utilize objections to break the pace or concentration of the attorney asking questions. They also use objections to coach the deponent. For example, right after a question is asked another attorney might say, "Objection. That question is vague. I don't understand it, and I doubt my client does either." The attorney does this with the obvious intent of his or her client then responding that parroting that do not understand the question. Courts have repeatedly held that objections are inappropriate when used for this purpose. The attorney taking the deposition should not allow repeated objections that are clearly intended to disrupt the flow of the deposition.