Deposition Preparation, Part 2: Depositions and Rules of Evidence

If you need to, remind yourself of the rules of evidence before deposition day. The formal rules of evidence in force at trial are much relaxed in a deposition context. The hearsay rule, for instance, doesn’t apply in a deposition.

Often during the deposition the witness’s counsel will object to a question to protect his or her client’s interests at trial. Nevertheless, the witness will be told by the lawyer interposing the objection to answer the question. For example, “What did the President tell you about his plan?” “Objection, hearsay, but you can answer”, might be the lawyer’s response to a question the answer to which counsel believes would be improper during trial but not improper for the deposition. Whether the answer is admissible at trial is reserved for a later day.

There are limited occasions when it is proper to refuse to answer a question during a deposition. These occasions arise when the examiner is improperly probing for information that is protected by a recognized privilege under the law, such as the attorney-client privilege or the work product doctrine. The privilege against self-incrimination is another important privilege. Sometimes these privileges are inadvertently waived. For example, counsel may have previously shown his or her personal notes relating to trial strategy in preparing the witness for deposition. Under such circumstances the objection posed to the examiner seeking to learn about those notes may have been waived.

You should not ask a witness more than one question at a time. And remember that you are prohibited from asking questions designed to harass or annoy a witness. You can be sanctioned, for instance, for repeatedly prying into the personal sex life of a witness or other matters in order to embarrass him or her.

Generally, counsel for the deponent is not permitted to initiate private conferences with the witness during the deposition. Conferences are allowed, however, if the deponent and counsel wish to discuss whether a privilege exists to serve as a basis for objecting.

Be sure to bone up on these rules if you have any doubt about them. You want to be completely at ease with yourself during the deposition, and uncertainty over such fundamental questions will only throw you off your game.