Every attorney has a deposition style all their own. However, even the best deposition takers can improve. This article sets forth tips and strategies for improving deposition preparation and deposition taking skills.
Tips to Prepare for a Deposition
- Research the law and keep the theory of the case in mind. In order to take effective depositions, attorneys need to know what questions to ask, and to do that, they need to know the law. Although it seems obvious, many attorneys do not research the law before starting discovery. Yet, the law, and particularly the nuances in the law, may guide the entire litigation. David M. Malone & Peter T. Hoffman, The Effective Deposition, Techniques and Strategies that Work §5.3 (2nd ed. 1996).
Once the litigation team knows the law, the team can construct a theory of the case, and work to obtain evidence (like deposition testimony) to support the theory. The case theory serves as the backbone for each deposition outline. The theory must remain flexible, ready to evolve as facts are discovered, and accordingly, the attorney taking the deposition must remain flexible with questioning. Malone, et al. supra at § 5.5.
- Learn which objections are acceptable. Which objections are permitted? It depends. Different jurisdictions have different rules regarding objections. All jurisdictions will permit objections based on privilege, as well as the “common sense” objections, like those involving harassment of the witness. Paul Bergman & Albert J. Moore, Nolo's Deposition Handbook, 130 (6th ed. 2014).
The questioning attorney may also raise an objection to opposing counsel's behavior including the use of excessive objections, or objections raised for the purpose of coaching the witness. See e.g. Security Nat’l Bank of Sioux City v. Abbot Labs., 299 F.R.D. 595, 604 (N.D. Iowa 2014) (chastising an attorney for excessive interruptions and coaching the witness with his objections). The questioner is also permitted to raise an objection if the witness's “answer” to a question is non-responsive. Bergman, et al. supra at 269.
Otherwise, the list of proper deposition objections is probably in the rules of procedure for the jurisdiction where the case is pending. For example, the appropriate objections for lay witnesses in federal cases are described in Fed. R. Civ. P. 32. Rule 32(d)(3) provides that any objection to the “competence, relevance, or materiality of the testimony” is NOT waived regardless of whether it is raised at a deposition. On the other hand, if the objection relates to a deficiency “that might have been corrected at the time” of the deposition, it is waived if not raised. Accordingly, an attorney would waive objections based on the officer's qualifications, another attorney's behavior at the deposition, and to the form of the question if not made during the deposition. All other objections are preserved. As a practical matter, then, the only objections one should expect to hear during the deposition relate to privilege or form.
- Be organized. Consider the sequence of your questions and make sure you are fully prepared. Organization ensures you cover the topics you intend to and also helps to make sure the record is clear for later use in preparing for trial or for motions practice. A thorough and detailed outline will help ensure nothing is forgotten. As depositions move forward, most attorneys end up going “off script” a bit from their outlines and just follow the conversation where it leads. When that happens, a thoroughly prepared outline allows the lawyer to go back over the list of questions or topics to make sure everything has been covered.
Strategies for Successfully Taking a Deposition
- Do not blindly agree to the “usual stipulations.” You do know what the usual stipulations are, don’t you? That is okay. No one else does either.
In many areas of the country, there are no usual stipulations. In other areas, it may be customary to enter into the “usual stipulations,” but “[t]here is no judicial definition defining what this phrase means and very few decisions explaining” the meaning. Kathy Behler, Best Advocacy Fix: Depositions and Stipulations, The Legal Advocate, (Nov. 4, 2013). Further, there is not always a consensus among practitioners. See Molfese v. Fairfaxx, 2006 WL 908161, No. 3:05-cv-317 (D. Connecticut April 4, 2016) (deciding whether the “usual stipulations” means in part to that the parties waive the right to review and sign the deposition transcript); Marshall v. Planz, 145 F. Supp. 2d 1258 (M.D. Ala. 2001) (holding that, in this case, the “usual stipulations” do not reserve objections regarding privilege, despite arguments to the contrary).
Accordingly, an attorney asked to agree to the “usual stipulations” should either decline to do so, or clarify on the record what is meant by that term. Several recommended responses to “do you just want to agree to the usual stipulations?” are set forth below:
- “No, I don’t do that.”
- “That’s fine; we just need to put them on the record.” Then, just start the deposition by stating “we have agreed to the usual stipulations. By that, we mean that all objections are reserved, except those as to form and privilege.”
- “No, let's just do the deposition per the Rules.”
- Regardless of whether the deposition takes place in an area of the country where parties customarily enter into the “usual stipulations” or that is just a meaningless phrase in the jurisdiction at issue, do not agree blindly. Consider whether each deposition is one where detailed objections might be needed.
- Follow up. Effective lawyers explore the details and nuances of the witness’ testimony. In the discovery deposition, what you don’t know can later hurt you. To avoid being hit at trial with something you neglected to cover at a deposition, you have to be ready to adapt. By the same token, failing to follow-up may result in missing vital testimony that could significantly help your case. While a good outline is critical, it is not a Shakespearean script. You need to ad lib your way through the details. Attorneys often come to depositions perfectly prepared, but stick so close to their outline that they fail to dive into the details of the answer and just move on to the next question they planned to ask. The best lawyering is often done in those unexpected moments. Listen to the answer and consider whether there are details behind it that may possibly have an impact on the case. If so, explore those details.
- Win and walk away. Once the questioner “wins” on a particular point, it can be tempting to let the other side know. Resist the temptation. There will be plenty of time to let the plaintiffs know they “lost” on a specific issue at the deposition in a motion for summary judgment. At the deposition, simply take the “win” and move on to the next point. At trial, it is almost always best to quit while you are ahead. Given how few cases go to trial, this may also be true in some depositions. If you like the record you have created and you have met your goals, do not be afraid to end the deposition rather than continuing at the risk of giving the witness a chance to undo the things you achieved up to that point.
Everyone has to find their own deposition style, but regardless of how experienced an attorney is, the style should evolve and improve. All attorneys can continue to hone their skills. Hopefully, some of the tips described here will help lawyers sharpen their skills and become better advocates for their clients.
Kimberly L. Beck is an associate at Ulmer & Berne LLP in Cincinnati, Ohio.