Beginning the Deposition

To avoid being thrown off stride before the deposition even starts, you, as the lawyer who noticed the deposition, should be sure you have made the necessary arrangements so that the deposition will start promptly and move smoothly; other counsel should do the same.



The interrogator and the deponent usually sit directly across from each other toward one end of the table. The reporter sits at the same end in order to hear their voices clearly. The lawyer for the deponent normally sits next to the deponent on the side away from the reporter.



But not every lawyer follows this common convention. As one seasoned litigator has explained, “[f]orget the folklore that the witness must sit next to the reporter, or across from the questioner, or at the end of the table, or, for that matter, next to her counsel. The witness and her attorney can sit wherever they want during the deposition. I like to sit next to the reporter, with the witness on my other side. That way I can put a hand up between the witness and the reporter if I need a second to make an objection or to think about a question.



“I know what you’re thinking. What about the reporter who says, ‘I’ll need the witness to sit here, next to me, so that I can hear her testimony.’ Short answer: ‘Thank you, but I am sure you will have no problem hearing her if she sits to my right. If you do, let me know, and we’ll work it out. Counsel, you may proceed.’” See Daniel Malone, Talking Green, Seeing Red – Why Most Deposition Preparation Fails, and What to Do About It, 24 Litigation 27 (Summer 1998).



As the interrogator, you will generally hold the deposition in your own conference room and can make the initial decision which side of the table to take. You may prefer to sit between the deponent and the door, leaving him feeling trapped and under your control. Conversely, if you want to put the deponent at ease, seat him closest to the door. This arrangement also reduces the chance that the witness will walk by your side of the table and observe the notes or documents you plan to use. Sometimes the interrogator may deliberately seat the deponent to face the glare from the window, which can become distracting over the course of the day. (Counsel for the witness should be alert to this tactic and should protect the witness by requiring that something be done about the glare.)



The interrogator may stand momentarily to stretch while continuing with questioning, or may stand beside the witness when asking about a photograph or document. However, counsel for the deponent should request that the interrogator be seated once the occasion for standing has ended, so that the interrogator is not hovering over the witness.



Although the importance of such minor details should not be exaggerated, neither should it be ignored.

The Oath

Administration of the Oath: As the interrogator, you begin the deposition by requesting that the reporter administer the oath to (or swear) the witness. Occasionally, you may encounter a new reporter who is not yet authorized to do this; one solution is to locate a notary public to administer the oath. Although the procedure is not strictly in accordance with Pennsylvania Rule of Civil Procedure 4007 or Federal Rule of Civil Procedure 30(c), unless an objection is made at that point, the validity of the transcript as a deposition will not be open to question. Even if such an objection is made and the transcript ruled not to be a valid deposition, it would still be useful for cross-examination as an inconsistent statement by the witness. If the deponent is an adverse party, the transcript (whether or not a valid deposition) would be admissible.



A deponent might refuse to take the oath for religious or other reasons. In that event, direct the reporter to ask him to affirm that he will tell the truth.



Sometimes, an interrogator questions the witness on what the oath means to him and what he thinks will happen to him should he fail to tell the truth. Although one might plausibly argue the relevance of such questioning, it is generally provocative, unproductive, and, if it probes into the deponent’s religious beliefs or opinions, improper.



Perjury: Obviously, deponents should not lie during depositions. Perjury in a civil deposition can be criminally prosecuted. A conviction for perjury can result in up to five years’ imprisonment and stiff fines. To find a deponent guilty of perjury under federal law, the prosecutor must prove that the deponent knowingly lied and that the lie was material to the case. However, the United States Supreme Court has held that a deponent does not commit perjury when his answer is literally true, even assuming it was meant to mislead the questioner, and even assuming the answer is false by negative implication. For these reasons, it is important for the interrogator to use follow-up questions in the deposition to avoid the pitfalls of unresponsive answers. Also, there is authority for the notion that a deponent may be able to avoid a perjury prosecution if he did not have an opportunity to review and correct the transcript, and the transcript was not used in any way.

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