Documents at Depositions: How do you properly work with documents?


Have you ever had a conversation that was noticed twenty days in advance, where you had to bring very specific documents, you were asked a series of questions that made little sense, someone copied down every word you said, someone else video taped the whole thing, and another person kept interrupting the conversation every thirty seconds by saying “objection”? Of course you haven’t, unless you have been deposed.

Depositions are unnatural conversations. Yet, they can be helpful to understand the testimony of a witness and gather important information for your Trust or Will lawsuit. And most Trust and Will cases involve documents; the estate planning documents, financial documents, accountings, bank statements, medical records, and so on. But few people know how to properly work with documents at a deposition.

The classic bad example of working with documents is where a lawyer shows the witness a document and ask them either (1) to read the document out loud (why?), or (2) if the documents says what it says it says (confusing?). For example, lawyer: “Ms. Smith if you look at the first paragraph that documents says your mother did not like her son doesn’t it?”; witness: “Ah, yes…that’s what is says alright.”

In legal jargon, documents “speak for themselves.” That means you cannot have a witness say what a document says at trial. The document already says it, so there’s no need to have someone speak it out loud. The reason for the rule is to prevent otherwise hearsay evidence from being introduced into evidence through a witness’s voice.

So how do you use documents at deposition and trial? You use them as guideposts on the road of your case. For example, the fact that a Trustee either knew or did not know of the warning about an investment printed in a prospectus is important. The Trustee does not need to confirm the warnings as true, just state whether he read them before investing. So the document is shown to the Trustee, you ask if he has ever seen the document before. If he says yes, then you ask whether he read the whole document, did he understand it, did he invest anyway? All of these questions form around the document, but do not ask the witness to restate the document. The information in the document is taken as a given, yes we can all see what the document says, but what did you do about it?

It takes a good bit of practice to be good at working with documents at deposition or trial. But after a few trys, you’ll be ready to work with documents like a master.