Lawyers, start your questions ? Part I

 Daniel I. Small, The Daily Record Newswire

Depositions are such a common part of today’s civil litigation landscape that much of how they are conducted has become routine.

That includes the opening “admonishments” to the witness. But every witness and every situation is different. Everything you do in the witness environment, right from the start, should be for a reason, not just because you have done it or heard it before.

Both sides — the questioning lawyer and the witness’s counsel — should think carefully about routines like admonishments: whether and when to do them, and how to prepare for and respond to them.

Like so many aspects of litigation, depositions are, in part, a battle for control. The questioner wants to be in complete command, and the circumstances certainly help. After all, it’s the questioner’s subpoena. His questions are carefully thought out (and often written out), and his documents are assembled and organized. The witness must simply sit there and take it.

On the other hand, one key goal of good witness preparation is to help the witness understand that that’s all nonsense: Only the witness is under oath; everything else is just stuff to get his testimony. Witnesses have a right and a responsibility to control their own testimony, and their preparation involves teaching the set of rules we’ve previously discussed.

That battle is reflected in the admonitions issue. For the questioner, admonitions serve primarily to protect the record in various ways. However, they’re also a means of asserting control by laying down the rules.

Yet by taking time to lay down the rules, are you also giving the witness time to get comfy in the chair? Whether, when and how these admonitions are given should be a matter of strategy, not routine.

For the witness, preparation can take away some of the impact — and misconceptions — that admonitions can sometimes bring. In general, the standard admonitions can be divided into five categories:

1) Protecting the oath

2) Protecting the transcript

3) Protecting the rules

4) Protecting the testimony

5) Protecting from excuses

We’ll examine the first two admonitions in this column and tackle the latter three next time. Let’s take a look at the process, from both sides:

1) Protecting the oath

• Questioner

The first set of admonitions is to protect and enhance the witness’s oath to tell the truth. They may initially include questions like:

“Do you understand that you have taken an oath to tell the truth?”

“Will you agree to take that oath seriously, just as if you were testifying in court?”

“Is there anything you do not understand about the oath or your obligation to tell the truth?”

Note the form of these questions. The process should not be just a lawyer’s boring recitation. Engage the witness in the process. The questioner’s goal is clear promises from the witness, not pontification by the lawyer. Ask the question until you get the right answer.

The other part of protecting the oath is to ensure competency, such as:

“Is there anything preventing you from testifying truthfully and accurately today?”

“Are you taking any medication or anything else that might interfere with your ability to testify truthfully and accurately?”

While there is some logic to asking these questions at the outset, there is no such requirement. This is your deposition, and you are in charge. Rather than letting the witness get comfortable with generic questions he is (presumably) prepared for, why not jump right in? Consider holding these questions to use as a control device. Wait on the oath questions until the witness waffles or contradicts; wait on the competency questions until they struggle with easy questions.

• Witness

From the witness’s perspective, the key here is preparation. With preparation, these are relaxing, routine questions. Without preparation, they can be a surprise and even feel like a frontal assault on credibility.

2) Protecting the transcript

• Questioner

Embrace the court reporter as part of your team (“we have retained …”) and use these admonitions to protect the record. These may include:

“Our court reporter cannot keep a clear record if people are talking over each other, so will you agree to wait until I’m finished with each question before you answer, and I’ll try to do the same?”

“Our court reporter needs clear answers to make a clear transcript, so can you be sure to say ‘yes’ or ‘no,’ not nod you head or say ‘uh-huh?’”

“In order to create a clean transcript that can be used later, our court reporter needs you to describe things clearly. So, when you are talking about people, can you use their names rather than ‘we’ or ‘they,’ and when we are using a diagram or a photo, can you describe where you are pointing clearly rather than ‘this’ or ‘there?’”

Wait for the right moment and use these questions to reinforce the message: I’m in control here; I will tell you how to do this.

• Witness

These are only effective control devices if the witness has not heard them before. Don’t let that happen. Review and discuss each of these tactics with your witness and turn them around. We tell all witnesses to slow down. If they have to be admonished not to talk over the questioner, they are going much too fast and should take it as a reminder to go slow.

On the other hand, make sure your witness holds the questioner to the promise. If he complains the witness is going too slowly, remind him that he was the one who asked the witness to slow down — and to promise not to interrupt.


Daniel I. Small is a partner at Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (4th Edition, 2014). He can be contacted at