Witness deposition timelines

When we study for tests, we make notes.  When we prepare for oral argument, we write outlines.  There’s something about thinking and writing that helps us better process and remember details.

In deposition, the accepted school of thought says – non-party witnesses should never write anything down when preparing for their testimony.  There is no attorney-client relationship.  So the notes will be discoverable by the other side.  The defense lawyer will study them.  The notes will be used against the witness and/or the plaintiff.

I was trained to follow this "rule."  The first time I broke it, my clients were Chinese.  English was their second language.  They were quite fearful they wouldn’t remember everything during the stress of deposition.   Their anxiety was probably going to impact their testimony.  So we decided they should go ahead and write notes.  During deposition, when the defense lawyer asked for the pages, they handed them over.  He couldn’t read Mandarin so that was that.

Today the witness has written four pages of notes (in English).   A timeline of events tracing what happened two years ago.  The defense attorney takes a break and reads them.  Now, they are an exhibit to the deposition.

The deposition is being videotaped.  The witness has her pages of notes laid out nicely on the table in front of her.  She doesn’t have to glance at them often.  But when she does, it seems normal and natural.  She is calm.  The notes give her confidence.  She is doing a fine job.

Here are some tips when allowing a witness to use timelines in deposition:

  • First meet with and prepare the witness for their deposition
  • Determine whether a timeline will be helpful
  • Determine whether the witness will be capable of making a usable timeline
  • Weight the risk of whether a timeline will be more helpful than not
  • Advise the witness of the option to write a timeline
  • Instruct the witness to base the timeline only on their own recollections
    • Except a witness can use documents that refresh their memory (like their own witness statement to a police officer)
  • Instruct the witness they must not interview or ask other people for information when making timelines
    • Especially not the plaintiff
  • A simple timeline is best:  date and event
  • Determine whether any further details should be added to to the timeline
  • Assume the other side will get the document
  • Assess each witness on an individual basis
  • Read the timeline ahead of time to make sure there are no surprises.
  • If there are surprises, deal with them
Karen Koehlerdeposition