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Advice to Young Lawyers: The Usual Deposition Stipulations

(right:  practice, practice, practice)

Take a look at Steven Archer's article on the Dangers of the Usual Stipulation for the reasons why the "usual" proposed stipulation is filled with traps for the unwary. 

Mr. Archer thoughtfully provides what he believes is a bullet-proof stip, which I'm providing below (with my contribution limited to reducing his stipulation to bullet points).

Mr. Archer is a partner with the highly esteemed national law firm of Robins, Kaplan, Miller and Ciresi.   

Thanks to the always helpful Illinois Trial Practice Blog for introducing us to this helpful article in its own post -- Beware the Usual Stipulations

That said, here are the matters Mr. Archer recommends be included in all stipulations entered into at the close of every deposition.

I propose that we agree to

  • relieve the reporter of his/her statutory duty to maintain custody of the original transcript.
  • after it has been transcribed, the reporter shall send the original transcript [by UPS, FedEx, DHL, or the equivalent] to the witness at [witness’s office or residence address].
  • the witness shall have 30 days within which to read and review the transcript, make any changes that he/she deems appropriate and list any such changes on the errata page provided by the reporter.
  • upon completion of the review and listing the changes, if any, the witness shall then sign the transcript under penalty of perjury where indicated at the end of the transcript.
  • the reporter shall provide a preposted and preaddressed envelope so that the witness may then send the reviewed, corrected, and executed original transcript and errata page to [counsel].
  • [counsel] will maintain custody of the original executed transcript and will agree to produce it and lodge it with the court at the time of trial or for any motion for which it may be required upon reasonable request.
  • [counsel] will also advise all other counsel in writing of any changes, corrections, additions, or deletions made by the witness at the time of the review of the transcript and will provide all counsel with a copy of the errata and signature pages within 10 days of counsel’s receipt of the original executed transcript from the witness.
  • should the original executed transcript not be reviewed, corrected (if necessary), or signed by the witness within that time frame, or should the original executed transcript later become lost or otherwise unavailable, the parties agree that a certified copy may be used for all purposes, as if it were a duly executed and corrected original transcript.

As Archer notes, don't try to memorize this.  Just copy it and stick it in your briefcase.  We're all tired at the end of a long deposition day and it's no time to strut your stuff by proving to opposing counsel that you've memorized the $#^%& thing. 

Better yet, for each case agree upon the deposition stipulation ahead of time and ask the court reporter to attach the fully executed copy to the transcript.  This is particularly helpful in big cases where many associates and partners are taking depositions on the same case.

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