Every lawyer has heard the phrase “usual stipulations” at their first deposition. I swallowed a few four-letter words in my stomach the first time I heard the suggested “usual” stips.” Nothing was usual! This was my first deposition and although I spent a week preparing, I was thrown from my saddle at the outset.
The other lawyers around the table started to nod approvingly at the “usual stips.” To avoid embarrassment, I nodded along, although I had no idea what I was consenting to. The stenographer typed away and I, seemingly, avoided a rookie mistake and went on with asking my questions. I couldn’t wait to get back to the office and figure out what the “usual stipulations” were and what I may or may not have agreed to. Turns out, I agreed to nothing and was subjected to a classic Litigation Mythology.
There are no usual stipulations. Federal Rule of Civil Procedure 29 (a) allows the parties to stipulate that a deposition may be taken “before any person, at any time or place, on any notice, and in the manner specified…”. No answers there. Federal Rule of Civil Procedure 30 doesn’t use the word “usual” in all the guidance it provides in taking a deposition. If there is no rule, then there is nothing “usual” about an adversary proposing an unarticulated stipulation before you start a deposition.
The next time you are asked about the “usual stipulations,” suggest that the deposition will proceed pursuant to the Federal Rules of Civil Procedure and Evidence. Then politely and with complete confidence, ask what stipulations your adversary suggests.
I understand it may vary from state to state and am curious whether there is an actual rule which explicitly references “usual” stips and what they are.