Deposing the Plaintiff

The fifth in a series of articles on basic strategies for questioning commonly encountered witnesses in civil litigation. This week: the plaintiff.

The plaintiff’s deposition is rarely just another deposition. The plaintiff is the architect of the lawsuit, the person whose factual story drives the pleadings, frames the damages claim, and ultimately stands before the judge or jury. The plaintiff’s deposition gives opposing counsel a single structured opportunity to test the entire case at its source: to confirm what the plaintiff actually saw, did, and suffered; to identify gaps between the complaint and the evidence; and to lock in the version of events that will define the trial. A strong plaintiff’s deposition may very well decide the case before trial.

Establish Objectives Before the First Question

Ideally in every case, the plaintiff’s deposition should advance these four objectives:

1. Discover facts the lawyer does not yet know.
2. Preserve evidence for later use at trial.
3. Obtain admissions that can be used to support summary judgment motions or cross-examination at trial.
4. Lock in the plaintiff’s version of events.

Beyond these four primary objectives there is one additional yet critical bit of information the experienced litigators never overlook: an evaluation of how the plaintiff will be perceived by the jury. Honest or evasive? Sympathetic or disagreeable? The answer drives every settlement evaluation that follows.

Documents do not change between deposition and trial; memories do.

Master the File and the Pleadings

Thorough preparation is widely recognized as the key to success in deposition practice. Before taking the plaintiff’s deposition, the examining attorney should be intimately familiar with the case file. The complaint defines every element the deposition must test: alleged duty, breach, injuries, and damages. Pattern jury instructions translate those elements into a checklist of factual questions. Sworn discovery responses follow the deponent into the deposition room and carry the weight of party admissions. Medical records, employment records, and contracts round out the file. The medical chart should be scoured for statements that contradict the plaintiff’s allegations. The same goes for any available employment records. There may be information in those files that contradicts claims made in the complaint or information that could be used for cross-examination during the deposition or at trial.

Foreclose Opportunities to Revise Testimony

As with any other deposition witness, careful litigators begin the plaintiff’s deposition with confirmations on the oath, on hearing and understanding each question, on the absence of any condition or medication that affects the plaintiff’s ability to testify truthfully, and on the equivalence of deposition testimony to trial testimony. Close with the catch-all: “Is there anything I have not asked you about that might prevent you from testifying truthfully, fully, and accurately today?” These confirmations close the door on later excuses such as “I was tired” or “I didn’t realize this counted.”

Build the Complete Background File

Be sure to cover all the basics, in detail. Cover full identifying information; chronological education and employment history with reasons for any gaps; prior lawsuits, workers compensation claims, disability applications, and insurance claims; criminal history involving dishonesty; social media accounts captured by screenshot before the deposition; chronological medical history; and everything done to prepare for the deposition aside from privileged discussions with counsel.

Use Exhibits to Pin Down the Story

Documents do not change between deposition and trial; memories do. Photos, maps, intake questionnaires in the plaintiff’s own handwriting, phone records, GPS data, internet search histories, prior recorded statements, and police reports all anchor testimony to objective evidence. Mark every document as a numbered exhibit and refer to it by that number in every question. When the plaintiff cannot recall, ask whether any document or other thing would refresh the recollection. A “no” closes the door on a refreshed memory at trial; a “yes” leads to documents the lawyer may not yet have. Plaintiff-originated documents — especially intake questionnaires written in the plaintiff’s own hand — are unusually difficult to disown.

Be Sure to Police Coaching

Plaintiff’s counsel may attempt to coach the witness during breaks, particularly in long depositions. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), held that conferences between defending counsel and the witness about a pending question are not protected by privilege. ABA Formal Opinion 508 (2023) reaches the same conclusion on ethics grounds — overtly attempting to manipulate testimony-in-progress violates the Model Rules of Professional Conduct.

After any break, ask the plaintiff three questions:

1. Did counsel remind you of any testimony?
2. Did that conversation refresh your recollection?
3. Did you change any testimony as a result?

A “yes” to any of those opens the door to further inquire regarding the substance of the conversation.

Stamp Out Speaking Objections

Opposing counsel will sometimes coach through speaking objections — “answer if you remember” or restatements of prior testimony that hint at the desired qualifier. Object on the record, request a proper legal objection, and ask the court reporter to read the question back. When counsel instructs the witness not to answer, make the asserted basis explicit on the record so the issue is preserved for a motion to compel.

Calibrate Tone and Watch for Selective Memory

A young widow in a wrongful death matter calls for empathy and a businesslike pace on the part of the examining attorney. Likewise, when the plaintiff is a convicted felon in a civil rights matter his or her credibility can be challenged more directly. Most plaintiffs fall between those poles. Subtle challenges to recollection or completeness usually outperform direct challenges to honesty. Here’s a useful technique with a memory-challenged plaintiff: ask questions that surface the contrast between fading recall of the central event and crisp recall of unrelated details from the same time period.

In Conclusion

A productive plaintiff deposition rests on disciplined preparation, the right stipulations, and disciplined execution of the three modes of questioning. Read the pleadings until you can recite them. Mine the sworn discovery responses. Nail the plaintiff down on every damages category and every pre-existing condition. Mark every exhibit. Police coaching on breaks. Done well, the plaintiff deposition delivers everything the defending lawyer needs to evaluate settlement, win summary judgment, or take the case to trial without surprises.