October 31, 2016 Practice Points

Making the Deposition Work for You

By Florence M. Johnson

Depositions are one of the most valuable tools in the discovery phase of litigation. An attorney has the opportunity to ask just about any question within reason, and the witness is compelled to answer that question.

The deposition process is a formal one, just like in a courtroom, and you should assume that the deposition will be used in a formal setting in the future. Will it be used to defend summary judgment? Will it be used in a trial when a witness becomes unavailable? You never know. It behooves you to behave as though any deposition will be heard before the Supreme Court. Unprofessional behavior can come back to haunt you when you least expect it.

Keep the following best practices in mind as you take your next deposition, and protect yourself from embarrassment—or worse—in the future.

• It should go without saying, but we’re saying it: The penalties for telling untruths in a deposition are the same as those for doing so in trial.
• Courtroom rules apply. Back up any objections with concise reasoning. Always stipulate to the reading and signing of the deposition at the start of the deposition.
• The conduct of counsel on both sides should be formal. Casual conversation, inarticulate questioning and failure to prepare not only waste the lawyers’ and court reporter’s time; more importantly, it wastes the client’s money.

The following are suggestions for producing useful and useable content through deposition testimony:

• Clearly identify the purpose of the deposition, including the specific information you hope to gain from the witness.
• Prepare your exhibits ahead of time and know how the documents fit into the narrative of your case.
• Prepare your client for the arena. If you’re the defending attorney, advise your client of your expectations and your goals. If you’re the attorney who noticed the deposition, prepare your client to be deposed. There's nothing worse than a client stating on the record that they fail to recognize documents that you know they have seen.
• Avoid any casual conduct or comments that you would not be proud of when the transcript is produced. Resist the urge to crack wise, discuss the latest game or engage in other chitchat with your client or your colleague across the table.
• Know what to do when you run into differences in opinion on objections with opposing counsel. Do not be afraid to call the court with discovery disputes that arise; however, do not be that lawyer who continually threatens to call the Court over disagreements.
• Videotaping is a must. Witnesses do forget the camera is there, often uttering interesting things or making admissions that you cannot anticipate. You do not want to regret not having it on tape to play back to the jury, nor do you want the jury to witness unprofessional behavior. Remember any admission by a party opponent permitted by Rule 21(A)(2) of the Federal Rules of Civil Procedure is able to be offered in court.
• Keep in mind that if any witness becomes unavailable, you will have that evidentiary record. Federal Rule of Evidence 801(d)(2) allows you to use that deposition for any purpose, and is integral to offer on witnesses who will not be available for trial.

In summary, the deposition is not the place to let your hair down. To make the most of the deposition process, you must be attentive, prepared and focused.

Keywords: minority trial lawyer, litigation, deposition, FRE 801, FRCP 32(A)(2), admission and videotape

Florence M. Johnson is the principal attorney at Johnson and Johnson, PLLC, in Memphis, Tennessee, and the chair of the Practice Points Subcommittee for the Section of Litigation’s Minority Trial Lawyers Committee.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).