Volume 18, Number 6
September 2001


Conducting a Winning Deposition

By Ronald Jay Cohen

In many states and under the federal system, disclosure obligations provide a solid framework for early disclosure of critical documents. Requests for admissions can be powerful tools to obtain fundamental admissions and stipulations that should not burden a deposition record. Interrogatories have, however, become more and more useless. They present a written road map that prepares witnesses for a deposition. Caution should govern the preparation of interrogatories, particularly those that seek more than data and statistical information.

You'll want to determine witness order. Establish a thoughtful order for witness examination to be reconsidered after beginning depositional discovery. There are important strategies impacted by the order in which witnesses are deposed. The order of witnesses you wish to depose should be considered early in your preparation process.

Deposition mechanics. Tests demonstrate that people perform better in an environment in which they are comfortable. Schedule your depositions at a location with which you are familiar or with which you will become familiar. If you are taking depositions away from your home city, visit the location; consider the importance of eye contact and witness proximity, which are key issues in witness control.

Consider who should attend the deposition aside from members of your firm, opposing counsel, and the witness. Some people's presence will materially affect, either negatively or positively, the witness you will depose. Make decisions as to who should attend when the deposition is noticed to ensure schedules will be accommodated.

Work regularly with the same court reporter or court reporting firm. The availability of real-time reporting (permitting contemporaneous access during questioning and testimony to a 99 percent accurate record), assemblage of what a court reporter calls a dictionary (indexing each word of the transcript), knowledge of appropriate spelling and vocabulary for your case, and understanding of the procedures and communications you wish to occur during a deposition are all enhanced by your solid relationship with a court reporter.

Prior to the deposition, make sure that you have healthy communications with all counsel to ensure that what are traditionally called ordinary stipulations are well stated in correspondence prior to the deposition and then properly expressed on the record. Noticing the deposition and use of the subpoena duces tecum. It is wise to utilize the procedures in the civil rules to schedule a deposition, either through notice and/or notice and an appropriate subpoena, rather than informal communications.

Conduct ethical homework on the opposition. You may wish to conduct ethical due diligence on key witnesses and on your opposing counsel. Find out about your legal opposition, their advocacy habits, and their reputation for truth and veracity. After one or two depositions with opposing counsel, you will form opinions, and those experiences should be added to the mix of your deposition preparation.

All key documents should be thoroughly reviewed and those to be used at the deposition selected and logically ordered. Any investigative materials should be considered in your deposition preparation. Information obtained from prior depositional discovery should be condensed and indexed. Deposition hits (or references in other depositions) may be collected by subject and should be organized. Document review also may include review of legal research. The examiner should know the critical elements and key words within the legal claims and defenses to ensure that those words will be used in questions and sought in answers to assist in preparation of post-depositional motions.

Prepare a key issue outline before your first deposition. An encyclopedia of issues permits you to recall key issues in preparation for every deposition and to get back into the major theories and issues of the case when other cases compete for your attention.

Prepare a final deposition outline that identifies the exhibits you intend to use and the order in which you wish to introduce them. Having a final checklist to assist the cognitive process is critical to conducting a winning deposition.

Prepare for the visual and nonverbal aspects of your deposition. How will you and your client dress? Will there be nonverbal communication between you and your client? Will you permit your client or your colleagues to interrupt you, send you notes, ask you questions?

A proven method to determine whether you have accomplished your goals at deposition is to set out those goals in writing prior to the examination. This exercise assists the advocate's focus.

Conducting a winning deposition. First, determine your style. Many advocates employ the carrot approach, trying to befriend the witness and examining in a professional but casual, informal manner to encourage open dialogue. Other lawyers believe a firm stick approach can be helpful, perhaps ultimately resorting to efforts to intimidate.

Teachers of advocacy commonly divide witness examination into two categories, chronological examination and impact examination. Chronological or narrative style starts at the beginning and proceeds to the end, traditionally covering witness background, qualifications, knowledge of the causes of action, damages, and then requesting opinions, if any. The impact style of examination begins by focusing on key issues early in the examination.

Impact examinations are often utilized in cross-examination of experts where, within the first few minutes, all opinions and the bases therefore are sought and the details of those opinions elicited as the examination progresses. Consideration may be given to the form of questions you execute-whether you wish to lead or seek real discovery by asking open-ended questions. The timing and use of exhibits should be part of your execution of the examination. Examine a witness first without documents, then use the document to add clarity and prompt the witness to a fresh recollection.

Plan the first five minutes of the deposition and execute them as the most essential. Use them to project your own credibility and preparation by asking questions that contain information about the witness, demonstrating that you know something about the person to encourage the whole truth. Consider using those first few minutes with the witness to project your own credibility and preparation by asking questions that contain information about the witness, demonstrating that you know something about the person to encourage the whole truth and not permitting the witness to hide behind an idle hope that you are unprepared.

Using an outline and writing during a deposition unnecessarily interrupts the flow of an examination. While I am a strong proponent of preparing a deposition outline, I am an equally strong critic of using it during the examination. Take sufficient breaks to review your outline to remind you of important subjects. Do not let your deposition outline compromise the conversational quality of the examination that you want to encourage.

Agreement with all counsel should be sought so that the court reporter consecutively numbers all deposition exhibits, but only once per exhibit. An exhibit should retain that number throughout discovery. Identify documents at all times by their exhibit numbers and use them with fluidity so that your dialogue with the witness is not interrupted.

Be a good listener. Time your recesses in accordance with the best interests of your advocacy. If you get the answer you wanted, move to another subject so as not to invite clarification or change. Solicit rather than discourage the witness's cooperation.

Make certain that you do not require the opposing expert to be humble. Learn all that you can about the expert during the examination. Get to know Article VII of the Federal Rules, dealing with qualification and expert testimony. Use prior testimony of the expert, and make certain that you conduct due diligence on witness compensation and experience testifying for plaintiffs or defendants. Consider asking the witness whom he would hire as an expert on precisely the same issues.

Before you conclude the deposition, clean up the testimony, confirming that the witness answered only questions that were understood, that there is nothing to add, that the witness felt comfortable with all answers, and that the deposition covered every matter material to the witness's understanding of the case. Ask questions that ensure the witness cannot credibly change or supplement any significant answer. Post-deposition procedures include learning whether the witness wants to read and sign the transcript or waive signature. Dictate a first impression memo as soon as your deposition has concluded.

Ronald Jay Cohen is the founding partner of the commercial litigation law firm of Cohen Kennedy Dowd & Quigley in Phoenix, Arizona. He practices in all areas of complex commercial litigation and was co-lead trial lawyer for the plaintiff in the largest plaintiff's verdict in the history of false advertising cases. He is the immediate past chair of the ABA Section of Litigation.

This article is an abridged and edited version of one that originally appeared on page 1 of Litigation, Spring 2001 (27:3).

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