The Deposition As ‘Open Book Test’

Some like it, some hate it.  Here’s the story: Some lawyers, as part of the client’s preparation for deposition, have the client prepare “Cliff Notes” of their testimony.  This would be a set of notes, including time lines, photographs and diagrams to help answer the defense lawyer’s questions.

Many lawyers (especially those on the other side) will complain that the dep is “not an open book test.”  But this is not true.  I know of no rule, no case law and no statute precept that prevents a client from using those materials to help when being deposed.

There are issues however.  First, the lawyer should not prepare the notes etc.  The client should do it.  (The lawyer can and should review the package however and make suggestions of what to include so the client does not forget.)  Second, if the client brings materials to a deposition the other side is entitled to see them and even have them marked as an exhibit.

If for some wrongheaded reason the judge forces you to let your client be deposed without the help of these memory aids, the client should respond with many answers like “I don’t recall” or “I can’t really be sure without reviewing my notes but I think the answer is…”

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