March 30, 2017 Practice Points

6 Tips for Conducting a Deposition Fearlessly

By Sathima H. Jones

For new associates, conducting your first deposition can be a fear-inducing venture. But depositions play a key role in the litigation process. As a new associate, the first, second, third, and maybe even fourth deposition you take can fill you with dread. But remember: It does get easier with practice.

Some law schools offer litigation training, but not much time is spent on depositions. Interestingly, many civil litigators spend more man-hours conducting and attending depositions than spent conducting trials. For this reason, it’s important for young attorneys to bear in mind a few tips while conducting and defending depositions.

1. Be Confident
The first thing to remember when conducting depositions is maintain composure and confidence. Remember that you can easily become your own worst enemy if you think in terms of “success” or “failure” during the deposition. It’s a discovery tool and not the actual trial. Sitting in on a deposition can go a long way toward easing into the process and allow you to focus more clearly on fact-gathering.

2. Be Prepared
It goes without saying that young litigators are workhorses, who usually know the case details inside and out. But, prior to a deposition, it’s important to reexamine key discovery, study your file thoroughly, and consider any facts that may require additional development through testimony. Additionally, it is helpful to consider your case strategy as you prepare. Your theory of the case will help to guide your course of questions.

3. Use Bullet Points, But Don’t Write an Extensive Outline
Aside from the initial script (including the rules governing the interview, offer of breaks, etc.) refrain from writing out long prepared questions. Write out your points of questioning in order in brief, bulleted statements. Remember that you are soliciting information from a live person, who will easily get grow bored by hearing you read aloud. Furthermore, you can get more out of a witness if you can turn the deposition into a conversation, flow with the conversation and, as you move along, strike points from your outline as they arise during the deposition to remind yourself that a specific topic was covered. A deposition may go on tangents throughout the course of testimony. Those tangents can lead your witness to a place where they are talkative, comfortable and ready to reveal valuable information unprompted. Allowing yourself to stray from a rigorously prepared outline often yields results.

4. Study the Rules
Thoroughly examine the applicable court rules on depositions. For example, there may be time limits for examining witnesses, rules on conferring with your client, and rules related to allowable objections throughout the deposition. During an early deposition in which I was only an observant young attorney, everyone agreed to “the usual stipulations.” To be candid, I had no idea what that meant. I now know that the “usual stipulations” mean that you are reserving, not waiving, your objections until the time of trial, except objections as to form. You are also agreeing that the deposition was properly noticed and the court reporter is duly qualified. But, at the time, it felt like some sort of ceremonial gilded secret.

Save yourself the embarrassment and remember that it is important to familiarize yourself with the rules in your jurisdiction that govern depositions.

5. Do Not Be Bullied
Know where you want to end up. Since you have your prepared deposition outline, you are familiar with what you want to know. As a young attorney, you are likely to be overly thorough in asking questions (and follow-up questions) for fear of making a mistake or missing something. This can lead to extra-long depositions at this early stage. You may receive some pushback from opposing counsel, but do not let that sway you—take your time if you need it. A creative compromise is to offer everyone a short break if you feel rattled or pressured.

6.  Review Your Work
After your first deposition, review the transcript with an eye toward examining your verbal habits. Don't be embarrassed; we all have them, whether it’s a “yeah,” “right,” “um-huh,” “huh,” or “okay.” It’s natural to have habitual speech patterns because we are accustomed to everyday conversations, but it’s not pretty unnatural to have a transcriptionist record your every utterance verbatim. You will see some stuff that makes you cringe, but reviewing your transcripts will help you remain mindful of habits you want to break prior to your next deposition.

Remember that no one was born with the skills to depose a witness. Every lawyer was once a new lawyer taking their first deposition.

Sathima H. Jones is an associate at Wade Clark Mulcahy in Philadelphia, Pennsylvania.