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September 30, 2016

5 Tips for First-Time Depositions

John Austin

New lawyers and associates will eventually be called to handle a deposition on their own for the first time. These tips are designed to help those new lawyers in preparation and execution of that often overwhelming task. A common misconception among young attorneys is that they will make a mistake at the deposition that will seriously harm their client's case. While in the practice of law there is a short list of mistakes that cannot be unwound, depositions are not one of them. It is more important to be relaxed than scared to make a mistake.

Outline your field of questions instead of writing them. No one wants to sound inarticulate or unprepared, particularly the new attorney mindful that his or her supervising partner or client will ultimately review the deposition transcript. However, if the lawyer writes out each and every question, is that instead of listening to the answer of the deponent, the attorney is already thinking of reading his next question. Instead of listening and reacting to the witness’s answer with an appropriate follow up question, the new attorney will be more concerned with the phrasing of the next question. A thin but comprehensive outline is all that is needed. Rather than having a perfectly formed, written-out question, a few words to evoke a question are all that is necessary (e.g. “Date Contract Signed”). The outline allows the attorney to read the notes, look up from his or her notes, form a question, listen to the question, analyze whether the witness has really answered the question, and form a follow-up question, if warranted.

Know the facts of the case. Preparation is obviously important, but it also the great equalizer. While new attorneys cannot hope to match a veteran’s intuition and facility that have been honed over hundreds of depositions, the new attorney can be more prepared than the veteran and, thus, help level the playing field. Extensive preparation may not be warranted for every deposition, but where there has been extensive discovery produced, the new attorney should be very familiar with responses and documents produced. Moreover, the new attorney should carefully interview his or her client to fully understand the case and ask questions the client (and the case) need answered.

Know the rules of procedure. A new attorney must know the rules under which the deposition is being conducted. Often, veteran attorneys will agree to the “standard stipulations”. Be aware of what those stipulations are prior to the deposition. First, read - and then re-read - the applicable court rules on depositions. For example, under the Federal rules, depositions are limited to seven hours. A new attorney may be surprised to find that his expansive time spent on the biographical history of the deponent does not have sufficient time to inquire about the knowledge of the witness regarding the case at hand.

Appear confident and competent. Make sure you have secured a conference room or place for the deposition and a court reporter. Arrange the conference room several hours before the deposition. Be ready when people arrive. Control the room from the beginning: Escort the court reporter into the room and tell him where to set up; set yourself up in the area of the conference room where you feel most comfortable; only allow in the witness and his counsel when you are ready. You should decide when it commences, and - most importantly - you should decide when it ends. Your first few depositions may last longer than the opposing attorneys or the witnesses think they should, and you may receive some groans or even on-the-record protests as you probe the witness’ knowledge. Don't let older attorneys rattle you.

Deal with objections. First, do overreact to opposing counsel’s objections. Never debate your opponent on the record. Always remember these three actions when faced with an objection:

  • Ask your opponent to clarify his objection if you don’t understand the basis of the objection.

  • Rephrase your question if the objection is to “form.”

  • Simply ignore the objection and press the question if you believe that the objection is not valid. Arguing with opposing counsel just wastes valuable time. Moreover, you may not want your argument against a veteran attorney recorded for your supervising attorney and clients to see.

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).

John Austin

Principal at John Austin Law Firm in Raleigh, North Carolina.