The purpose of any deposition is to gather facts and clarify details. The importance of clear communication during a deposition is something that everyone in the room needs to be cognizant of throughout the process. The importance of clear communication is a constant that never changes whether it is your first deposition or your hundredth.
Non-verbal communication is a part of human nature. However, deposition transcripts are not movie scripts. Eye rolls, hand gestures, deep breaths, head nods, sighs, glares, glances, cleared throats, pauses, and uncomfortable shifts in the seat are not entered into the record. While counsel can cue in on a large number of non-verbal gestures to tailor their questioning, the court reporter will pay them no attention. Non-verbal communication will often show up on a video recording. However, it is not uncommon for juries to receive instructions to ignore everything but what is verbally expressed.
Uh Uh, Huh, & Oh Oh are No No’s
English is full of sounds used to express everything from “yes” and “no,” to “I don’t understand.” However, as with non-verbal communication, these verbal utterances create more confusion than clarification. Prior to the deposition, it is imperative to instruct deponents to avoid these types of answers. The importance of clear communication during a deposition is that it helps avoid miscommunication and misinterpretation. It also helps speed up the deposition process by removing the time needed to ask “What do you mean by that?”
Avoid Compound Questions & Rambling Answers
Attorneys typically raise objections when counsel asks complex, multi-part questions. This is because these often require the deponent to speculate. As such, it is recommended to break questions down into parts that deponents can answer with a simple “yes,” “no,” or at most, a brief explanation.
You should also instruct your clients and witnesses to avoid giving rambling answers or delivering speeches. Remember, opposing counsel can use this information to question a deponent’s credibility and it can perjure a witness.
Reviewing the Evidence
Deponents may review any documents that are referenced during the deposition. Whether it is an insurance policy, accident report, or medical chart, deponents can ask to review these documents before delivering their answers to a question.
The Gray Area of Estimates
The importance of clear communication during a deposition extends into the gray area of estimates. Deponents are often asked questions estimating time, distance, speed, size, etc. When these types of questions arise, it is advisable for deponents to verbally express that the answers offered are estimates and not established facts.
Circling Back to Previous Questions
Memory is strange and unpredictable. Sometimes, answers to questions asked earlier in the deposition can come back later in the deposition as the memory is jogged. When this happens, it’s recommended to clearly reference the earlier question before delivering the answer. For instance, “Earlier you asked what day xyz event happened. I now remember it was May 15, 1996.”
Communicating with the Court Reporter
Whether you are using a freelancer or an agency, clear communication with the court reporter is crucial. This must continue before, during, and after the deposition. When scheduling the deposition, discuss the expected duration of the deposition, the location, and who will be responsible for reserving the location.
You will also want to go over any standing orders you have. These can include details such as the need for synced video and the choice of a specific court reporter. They can also cover the need for an interpreter, videographer, expedited final transcripts, etc. The more details you cover with the court reporter, the better. There are considerable logistics that go into a deposition and you will want to verify every detail along the way.
Fixing Errors, Clarifying Jargon, and Making Changes
It is advisable to thoroughly review the transcript of a deposition as soon as you receive it. Federal Rules of Civil Procedure require that any changes to a deposition be made within 30 days once the transcript becomes available to counsel. This period allows counsel and deponents the ability to review the transcript to correct stenographical errors and clarify jargon presented during the deposition. When changes are requested, the witness must sign a statement identifying the changes and the reasons for the change. The deponent’s statement, counsel’s statements, along with the original transcript all become part of the permanent record.
It is important to note that significant changes to the substance of testimony are generally not allowed by the courts. It depends on how the court interprets the rules and existing case law. When it comes to the importance of clear communication during a deposition, it is crucial to inform clients of this fact. In some instances, requesting changes to testimony can lead to impeaching the witness or reopening of the deposition process.
In another article, we discuss What Every New Attorney Should Know About Depositions.