Advice for Young Lawyers: Using Documents at Deposition
Nothing throws more fear into the heart of a young litigator than using documents at a deposition.
Here's the good news. It's easy if you know the rules and follow the steps.
Here are the steps.
- Mark them
- Authenticate them
- Lay the foundation for the business records exception to the hearsay rule
- Lay the foundation for any available hearsay exception for hearsay statements contained in the business record itself;
- Question the witness about the documents
- to refresh his/her recollection
- to impeach his/her testimony
- to obtain an explanation of the meaning of language contained in them
- to forward your case and tell your client's story
Feel free to bring "cheat sheets" with you to the deposition, remembering that you can rarely save your face and your ass at the same time.
MARK IT
- Scratch an exhibit number on the document (or post-it) if it hasn't previously been marked
- Hand copies to opposing counsel and to the court reporter
- Say, "the Court Reporter will mark as Exhibit Q, correspondence from X to Y dated June 16, 2003, carrying Bates Stamp number 325490."
- Pause as the reporter affixes an exhibit number to the document and hands it to the witness
- Say to the witness, "do you now have exhibit Q before you?"
AUTHENTICATE IT
Q. "Please identify Exhibit Q for the record."
A. "It's a letter I wrote to Mr. Jones."
Q. "Is that your signature at the bottom of the second page?"
A. "Yes it is."
Q. Is this a true and correct copy of the letter you wrote to Mr. Jones on such and such a date?
A. Yes, it is.
OR
A. "It's a letter I received from Mr. Green."
Q. "Is that Mr. Green's signature on page three of Ex. Q?"
A. "Yes."
Q. "How are you able to recognize it?"
A. "Because I . . . corresponded with him regularly or I've seen him sign his name on several occasions and I recognize this to be his signature."
Q. "Is this a true and correct copy of a letter from Mr. Green that you received on or about such and such a date?"
A. "Yes it is."
ESTABLISH THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE
Q. You were employed by ABC Company in 2002?
A. Yes I was.
Q. The Court reporter has marked and placed before you Exhibit Y, carrying Bates Stamp range 20056-98. Can you identify Ex. Y for the record.
A. Yes. It appears to be a copy of ABC Company's ledger book.
Q. What is the function of the ledger book?
A. We use it to record all of our sales and payments.
Q. Are the entries in Ex. Y made at or near the time of the recorded sales and payments.
A. Yes
Q. Are the entries made as part of the regular business of ABC Co?
A. Yes.
Q. Is Ex. Y, the ledger book, kept in the ordinary course of ABC's business?
A. Yes.
Q. How is it that you're familiar with the ledger book?
A. "It's prepared . . . . by me (or under my supervision)" or "as part of my job duties, I review the ledger on a monthly basis" or "I've occasionally seen the ledger and am aware that it is maintained by Mr. Brown, who works in the accounting department" or any other way in which the witness is familiar with the document.
You've now accomplished that which, I'm afraid to say, 90% of the attorneys taking depositions fail to accomplish every day. If you don't get any other useful testimony from this witness, you will have created a record that will permit you to use these documents as evidence in summary judgment motions and at trial.
We will cover in a subsequent post the following two steps -- laying the foundation for hearsay exceptions to hearsay statements contained in business records and using the document itself to forward your case.
How would you lay a foundation and authenticate a email when deposing an employee of a company that was copied on the email (all recepients are internal to the company)? How do you lay a foundation and authenticate when the deponent is also a criminal defendant and is pleading the 5th to every question?