Depositions Upon Written Questions

While preparing for trial you realize that you need to offer evidence of one crucial fact known only by a witness residing on the West Coast. The residence is in a city you have long wanted to visit. Now you can fly there at your client's expense, take a brief deposition and see the sights.

But wait. This client is struggling with the tough economy. How can you competently represent the client frugally? Consider Tennessee Rule of Civil Procedure 31, permitting depositions by written questions. Here's how it works.

Serve your single written question on adversary counsel with the name and address of the deponent plus the court reporter's name. Counsel can serve "cross questions" on you within 30 days.

The next chore is to secure attendance of the witness. Obviously a Tennessee subpoena is a waste of paper. Check the law of our sister state. Probably that jurisdiction has either the new Uniform Interstate Depositions and Discovery Act (see Tenn. Code Ann.  § §24-9-201 et seq.) or the old Uniform Foreign Deposition Act. A subpoena issued and served in that state will compel attendance.

The court reporter will read the question, record the deponent's answer, and certify the deposition. Then the reporter "shall ... file or mail the deposition." Assuming the document is mailed to you, file it with the court clerk and promptly notify opposing counsel of the filing.

There was a time when court testimony was taken by interrogatories. Obtain and read The Lodger Shakespeare: His Life on Silver Street, by Charles Nicholl (Viking 2007). In 1612 the playwright gave a deposition upon written questions at the Court of Requests in Westminster. Stephen Belott sued his father-in-law Christopher Mountjoy for unpaid dowry. Shakespeare lodged during 1604 in London with the Mountjoy family on Silver Street. He had entreated Belott to marry Mary Mountjoy.

A sentence from the deposition, translated into modern English and slightly rearranged, reads as follows: "To the third interrogatory this deponent sayeth that he did move and persuade the complainant to effect the said marriage." The Bard signed as "Willm Shaks." Stephen Belott prevailed with a judgment for part of the dowry; whether he collected is unknown.

Sadly, the lodging no longer exists. The Great Fire of 1666 burned the Mountjoy house, and the Blitz of 1940 destroyed Silver Street. But Rule 31 remains extant. Use it when it helps your client. And take that transcontinental trip before it's too late.  


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.