Article by Mark Derner, Esq.
If you have ever read a deposition transcript or been present at a deposition you may come across the phrase “usual stipulations.” You may not think much of them. You may not want to inquire about what they mean due to concerns you may come off as uneducated or inexperienced, especially for new lawyers. You may just say yes to play along and keep the status quo. However, the usual stipulations a) may not mean the same thing to every lawyer and b) blindly agreeing to stipulations may cause ripple effects in specific scenarios.
What are these so-called “usual stipulations”? For in-person depositions, “the usual stipulations,” according to West’s Pennsylvania Practice Series (Discovery, Section 9.3), are the following to be these:
- Agreement to waive reading and signing the deposition transcript
- Agreement that withdrawn questions will be omitted from the transcript
- Agreement that all evidentiary objections will be preserved until trial
- Agreement that any opposing attorney’s objection inures to the benefit of all
- Agreement that an instruction from counsel that the deponent not answer shall be deemed the equivalent of the deponent’s refusal to answer
Unquestionably, stipulations are a good thing. They promote efficiency, they give counsel complete control over how depositions will be conducted and used in the litigation, and they reserve visits to the judge’s chambers for more important matters. The “usual stipulations” cited above certainly promote these objectives in most cases. However, lawyers should know what they mean, if one automatically agrees to them because they are usual we lose sight of their importance. Herein lies the problem. If you ask “What do you mean by the usual stipulations?” you may receive comments like “You don’t know what they are?” and ‘Back in my day we would never ask that.” Additionally, asking this question may distract from the deposition itself while parties try to agree on what the usual stipulations actually are. However, this can be a key question depending on what side of the deposition you are on and what court system you are in.
The Usual Stipulations in Action
For example, if you are taking a deposition under the Federal Rules of Civil procedure there are differences from state procedure. Usually, under the Federal Rules, any defect that can be cured during the deposition must be cured, or the objection is waived. Curable matters include errors in the form of a question or answer, manner of taking the dep, oath or affirmation, or a party’s conduct.
The taking attorney gains nothing from either stipulation. If anything the taking attorney may be vulnerable to surprise objections if they blindly agree to usual stipulations. For example, if a witness is unavailable at trial but a deposition was taken and the counsel had stipulated to reserve all objections. If the deposition testimony is read from the unavailable witness the defendant’s counsel can object to all of those questions. The objections can be sustained and the deposition testimony is inadmissible. Worse yet, plaintiff’s counsel realizes that the objections could have been cured with more questions, had the objections been made at the deposition.
One important thing to note, however, is that you cannot “usually stipulate to waiving privilege. Typically, once a usual stipulation is agreed to it is too late to interject objections and block the answering of questions in the orderly course of the deposition. However, this aspect of the stipulations does not extend to privilege. Fodelmesi v. Schepperly, 1990 WL 115607, at *2 (S.D.N.Y. Aug. 10, 1990). Therefore, regardless of which usual stipulations you agree to your client’s privileged communications are still covered.
Do You Have to Agree to the Usual Stipulations?
Parties have the right not to agree to the usual stipulations. In re Endres, B.R.49,54 (Bankr. N.D.N.Y. 1989). Additionally, pro se plaintiffs can object to the “usual stipulations” because pro se plaintiffs do not know what the usual stipulations are and, therefore cannot agree. See Garces v. Pickett, 2021 WL 978540, at *10 (E.D. Cal. March 16, 2021). Barred attorneys however do not have the luxury of objecting to the usual stipulations later, they have to clarify them in the moment. The expectation for attorneys is so high that even silence can be considered consent to the usual stipulations. Garcia v. Co-Con, Inc., 629 P.2d 1235, 1236 (N.M. App. 1980).
It would be simple to say that the taking attorney should never stipulate to reserving objections as seen in the example above and that a defending attorney, on the other hand, should always try to reserve objections. However, every situation is different, and different lawyers have different opinions on how to conduct yourself regarding the usual stipulations. The most important takeaway is to know what the usual stipulations mean in your jurisdiction and be conscious of what you are agreeing to with other counsel. Clarity for attorneys is key and asking questions is always encouraged.