So you've been asked to take a deposition of a key witness or expert. Congratulations, you've been trusted with a key piece of the civil action, and perhaps the single most important discovery device. Depositions can be used to reveal the strengths and weaknesses of a case, but where do you even start?
1. Navigating Deposition Logistics
The deposition notice. Refer to your specific venue's rules, but most jurisdictions require a notice be served upon the party to be deposed, which identifies the following:
- The time at which the deposition will be taken;
- The place at which the deposition will be taken;
- The name of the person to be deposed; and,
- The address of the person to be deposed.
The court reporter. I will never forget the very first deposition I was asked to conduct. I was 100% prepared: cool, calm, and collected. At the time the deposition was scheduled to start, the court reporter was nowhere to be found. And why? For all of my preparation, I never considered it might also be my responsibility as the deposing party to order (and CONFIRM) this rather significant detail.
Positioning. When questioning the witness, you should place the witness directly across from you and near the court reporter.
2. The Key to a Successful Deposition is Preparation
Consider the goals of each deposition. Are you:
a) Gathering information,
b) Obtaining specific admissions of key facts, or
c) Perpetuating trial testimony?Identify the witness's role in the case. Review the pleadings, discovery, etc.
Be familiar with the governing law. This includes pattern jury instructions, number of depositions, time limit, etc.
Outline your deposition questions, planning what facts you want to elicit. However, DON'T BE A SLAVE TO YOUR OUTLINE. It should be just a guide, not a crutch (script). I started my first deposition of a personal injury plaintiff as a defense attorney with a 57-page outline. While my co- and opposing counsel were familiar with my "comprehensive" outline and, thankfully, patient during questioning, the outline quickly became burdensome and obsolete.
Be an active listener.
a) Listen to the answers carefully, and ensure clear responses.
b) Ask follow-up questions, as necessary, in the case of generalizations and opinions.Think impeachment at trial. Watch for potentially inconsistent testimony.
Your goal is to put most deponents at ease in the beginning of a deposition so they give information freely, without having to browbeat for every answer.
3. Take Charge. Be Confident. Be Courteous.
Get the information you need, but do not "slay" or disrespect the witness or opposing counsel.
Your attitude should be professional. Conducting depositions in a skillful and respectful manner can extract helpful details. Do not interrupt or talk over the witness. The witness should want to help you—not fight you.
Determine your style and be yourself. Attempting to mimic the style of an experienced partner, will often cause you to appear inauthentic and leave you failing to build rapport with witnesses. Instead, focus on your strengths and commonalities to connect with witnesses. For example, a young female, nervously portraying a "bully" mentality with a male expert witness furnishes no connection and may endear him to turn away from assistive testimony.
4. Sequence Your Questions Like a Funnel
Begin broadly, and move to more directed questions. Being sure to listen and follow up, as witnesses will often provide the information you're seeking.
5. Dealing with Objections
Most times, just ignore objections and instruct the witness to answer unless:
a) It is a form objection, then try to rephrase the question.
b) It is a privilege objection, then attempt to clarify the record.Do not officially "close" the deposition if questions over objections remain.
6. Preparing to Depose the Opposing Expert Witness
Taking expert witness depositions can be one of the hardest tasks facing a lawyer.
a) As with fact witness, determine the focus of the expert's potential testimony.
b) If available, prepare your questioning in line with the expert's report and/or referenced materials.