A deposition is one of the most useful discovery tools for trial attorneys. It is the only opportunity, prior to trial itself, where an attorney can question a witness about nearly everything he or she knows regarding the case.
I have taken and defended several depositions. Each provided a lesson I wish I would have known from the beginning. I recall how excited I was when I was assigned my first deposition. I also recall that as the deposition date approached, the idea of questioning a stranger, and facing opposing counsel, who I was sure would be at least twice my age and have a lifetime of experience, became more of a painful feeling in my chest. So, if thinking about taking your first deposition makes it a little hard for you to breathe, do not fret. I will share what I have learned with you.
Be Prepared.
This means you should know the facts of your case (to the extent possible), know the claims, know the law, understand the form in which questions must be asked, and the objections that can be raised by opposing counsel. Oh, and have extra copies of your deposition exhibits.
Learn About the Attorney Defending the Deposition.
I do not advise this to cause you more anxiety when you see that opposing counsel’s bar number is only five digits long or you see the attorney has been practicing law since before you even thought about becoming a lawyer. Instead, the purpose is to learn about the attorney’s deposition personality. Ask around; find a colleague or friend who has dealt with this attorney before. Find out if the attorney is difficult to deal with in a deposition. Is the attorney one to object to every question whether the objection is proper or not? Is he or she likely to use speaking objections to coach the witness? Or is the attorney more likely to be preoccupied by checking email during the deposition? The more you know about the attorney’s deposition personality, the more you can anticipate it and prepare for it.
Should the Deposition be Videotaped?
You must think about the witness. How important is the witness to the case? What is the witness’ demeanor? Would it be beneficial to have the trier of fact watch a video of the witness being questioned, or will a transcript be sufficient for you to achieve your goals at trial? You must do a cost-benefit analysis. However, one thing is certain, you do not want to find yourself at trial wishing you had a video of the deposition.
Be an Active Listener.
One of the worst mistakes you could do is to shackle yourself to your deposition outline. If all you are doing is following a script of questions you have prepared, you are likely to miss key pieces of information that the witness may provide when answering your questions—key pieces of information that require follow up questions. Your outline should guide you but your mind and ears should control the questioning.
Take the Necessary Breaks.
Taking breaks will allow you to gather your thoughts, review documents, and check your outline. Do not let opposing counsel rush you. Depositions are typically not short and opposing counsel knows that. Know the rules regarding time limits for the deposition you are taking and do not let opposing counsel cheat you out of your time. Unless you can show cause why a witness should be deposed again, you only get one bite at the apple so make sure it’s a good one.
Own the Deposition.
You noticed the deposition, you selected the time and place, you are the one questioning the witness. It is your deposition. Take your time in asking questions. If the form of your question is proper, and unless the attorney instructs the witness not to answer, the witness should answer your questions. You do not have to justify your question or withdraw it simply because opposing counsel has objected to it. The witness may also try to avoid answering your questions by providing nonresponsive answers. Do not let yourself get confused. Make sure the witness has answered the questions you asked. If not, press the witness respectfully. “Thank you for that information Mr. Jones. But I was actually asking about…” Repeat your question.
It is your job to walk out of the deposition with answers to your questions. Do not forget: after the deposition review the transcript, ask colleagues for feedback on your performance, and follow up with opposing counsel on any outstanding issues or requests.
“If you are resolutely determined to make a lawyer of yourself, the thing is more than half done already.” — Abraham Lincoln.
