Defending the Witness By Ralph J. Monaco, Esq. September 2004

Your client or a fact or expert witness for your side is being deposed. You have prepared your witness, remembering that there is no privilege between you and a non-party witness. You may think to yourself, "my work is done." Not so.

As a defender of the deposition you have to keep in mind several issues that you must address:

  1. Recommend that the witness read and sign
  2. Agree to the "usual stipulations" unless it is a trial deposition. The usual stipulations mean that you are reserving, not waiving, your objections until the time of trial, except objections as to form. You are also agreeing that the deposition was properly noticed and the court reporter is duly qualified.
  3. Do not let the interrogator bully your witness.
  4. Visualize the transcript-this means be alert to note for the record things that affect meaning but that will not otherwise be reflected in the transcript, such as a rising inflection indicating that the deponent is asking a question, not making a statement.
  5. The lawyers defending the witness should not testify. However, you may object to a form of a question and explain your objection.
  6. Make sure the deponent is given ample time to answer a question. Don't let him/her be rushed.
  7. Be careful of going "off the record", because the interrogator can discuss the topic "on the record".
  8. Ask for appropriate breaks. Tired witnesses make mistakes.
  9. Make sure documents discussed in the deposition are marked as exhibits.
  10. Do not react to answers. This tips off opposing counsel.
  11. Instructions not to answer. Should rarely be given unless the question seeks privileged information, corporate proprietary information, involves the Fifth Amendment Right against self-incrimination, or is clearly in bad faith, being asked to unreasonably annoy, embarrass or oppress the deponent.
  12. When should you question your own witness? Rarely, because you give the interrogator the opportunity to ask follow up questions and may open another "can of worms". You should question your own witness only when:
    1. the witness may be unavailable at trial; or
    2. you want to clarify or correct something immediately.
  13. "Defending Lawyer as a Presence".
    "The defending attorney should be a presence, "'not a potted plant.' In a broad sense, the defender establishes himself as a presence whenever he speaks effectively. The deponent should sense, feel, and know that the defending attorney is there to protect him." The Deposition Handbook, Second Ed. (Wiley Law Publications 1992), p. 185.
  14. Permitted Objections
    If the deposition is a trial deposition to be used in lieu of trial testimony, you should make your trial objections on the record. With videotapes, both counsel should pause to ensure that the video operator at trial has time to pause the tape so that the judge can rule during the trial. Note, some judges will rule ahead of time outside the presence of the jury.
    In a discovery deposition, if you agreed to the "usual stipulations", all objections are reserved (not waived) until the time of trial. Permitted objections to form include:
    1. Ambiguous question
    2. Argumentative question
    3. Assumes facts not in evidence
    4. Mischaracterizes the testimony
    5. Compound question
    6. Confusing
    7. Harassing the witness (includes asked and answered)

RALPH J. MONACO is a partner at Conway, Londregan, Sheehan & Monaco, P.C. in New London (, where he has practiced in civil and commercial litigation since 1993. Conway, Londregan, Sheehan & Monaco, P.C. is a general practice firm, and Attorney Monaco heads their litigation practice. He graduated from Fordham University, B.A (cum laude, 1989) and Quinnipiac University School of Law, J.D. (with honors, 1993). He is a Board Certified Trial Lawyer, having been certified by the National Board of Trial Advocacy in 2001.

The Connecticut Law Tribune named him the New Leader of the Law for New London County in 2002. He is a member of the Connecticut and New Jersey Bar, the U.S. District Court for the District of Connecticut, the U.S. District Court for the District of New Jersey, and the U.S. Court of Appeals for the Second Circuit.

He regularly handles complex litigation matters and has tried numerous jury cases in state and federal court. He has successfully argued appellate cases at the Connecticut Appellate Court, Connecticut Supreme Court, and the Second Circuit Court of Appeals.

Attorney Monaco serves on the House of Delegates of the Connecticut Bar Association (CBA) and the Board of Governors of the Connecticut Trial Lawyers Association. He is a past Assistant Secretary-Treasurer of the CBA and past chair of the CBA Young Lawyers Section. In addition, he is a member of the CBA Litigation Section Executive Committee, the CBA Federal Judiciary Committee, and the CBA Committee on Liaison with the State Courts.

Attorney Monaco can be reached at 860-447-3171 or [email protected]