Using an Outline
Although the exact approach is a matter of style, it is usually better to use a general outline for a deposition than a detailed list of every expected question. With an overly detailed outline, you are more likely to stick to it in the deposition than to listen to the answers and be able to follow up with some flexibility. If you are using documents, consider marking up the documents or drafting your questions on the documents; this can allow you to do follow-up questioning for each document as you go through the deposition. Be sure to review your outline before the end of a deposition to confirm that you did not miss points that you wanted to address.
Style of Questioning
Your questioning style may be open-ended like a direct examination, narrow and controlling like a cross-examination, or a combination of the two. How you ask questions at a deposition depends upon your purpose in that deposition. For example, if you know that a witness will not be available at trial and the deposition is being videotaped, you may want to treat the deposition as a cross-examination. You would cross-examine the witness in this type of deposition as you would at trial. If the witness will be available at trial, your purpose more likely will be to elicit the witness’s story. In this situation, you will want to understand what the witness will say and establish points that you want to focus on in the deposition by using wide-ranging and more open-ended questions.
There are other considerations that will guide your questioning style. For example, if a witness may not be at trial, you do not want to have that witness give responses adverse to your client; you should then be wary of open-ended questions (e.g., “what happened next?”). Considering all of these goals will frame whether your questioning style will be primarily like a direct examination, a cross-examination, or a combination of the two.
Remember that there are only two valid objections in a deposition: form and privilege. If the objection is to form, a witness still must answer the question. As a general rule, you should completely ignore the objections or statements from opposing counsel. Also, you should never argue with opposing counsel; often, they are just trying to throw you off track or interrupt your rhythm. If opposing counsel continues to object, ask if counsel is instructing the witness not to answer. If counsel is not instructing the witness not to answer, continue and obtain the answer to your question. If counsel is instructing the witness not to answer and there is not a clearly valid privilege claim, you should contact the judge or magistrate to resolve the issue. Such action can rein in opposing counsel. If the judge is not available, consider whether the issue is important; if not, move on. But if it is an important issue, contact the judge later or make a motion as soon as possible. Regardless, to the extent you can avoid it, never argue with opposing counsel.
Specific Questions or Contexts
Attorney-client relationship. When you depose a third-party witness, it is fair to ask if the lawyer present is representing that witness and if the witness retained the attorney. This will establish if there is an attorney-client relationship and may be especially important if the opposing party’s counsel is representing the third party. Early in the deposition or at the end, you may want to ask witnesses about discussions with others regarding the case. In particular, with company representatives or employees, you should ask about discussions that they had with others (excluding their attorney) regarding the case; this can include discussions at the company or with anyone else as these are not privileged.
General background. Ask if a witness has ever testified at trial or deposition or has ever been a party to a lawsuit. If they testified before, obtain as much information as you can such as what the case was about, the forum, attorney names, and case name; then request or subpoena the transcript of those proceedings or obtain it from other attorneys or the court reporter. This material may let you see how the witness will perform at trial and may reveal that the witness previously testified to something relevant and possibly inconsistent.
Discovery-related questions. You can ask a witness questions to confirm the scope of discovery. For example, if a witness is a company representative, you may want to ask if the witness recalls receiving a litigation-hold notice, produced documents, or was contacted to produce documents. You also can ask whether a witness searched its files, shared drives, personal computer, personal and mobile electronic devices, and more. If a witness is a third party, you might want to ask whether it has any relevant documents at home, on its personal computer, and in its home files and whether it kept handwritten notes or saves its calendar.
Length. Depositions do not have to be long. If you are taking a deposition for evidentiary purposes, you likely will only use a small portion, especially if a witness will not be available at trial. If the witness will be available, you may want a longer deposition because you must cover the landscape; however, you may want to save some of your best questions if you think the case will proceed to trial. In the case of a multi-day deposition, order the rough transcript and review it before the next day’s questioning.
Create your record. In formatting your questions, remember that you are creating a record in the form of a written transcript or videotape. You must phrase your questions directly to be understood when read back later. You also should ask straightforward questions to enable the court reporter to properly record every word. To ensure a clean record, allow the witness to finish answering the current question before you begin your next question. If you need to repeat a question, it may be better for you to ask the question again rather than having the court reporter repeat it. You then will have a clean question-and-answer snippet to show the jury rather than a note that the court reporter re-read a question. Finally, do not ever joke on the record. When others later look at the cold hard record, the humor will not come through in the same way as in person.
Consider using a video deposition, even if the witness will be available at trial. A videotape can be more effective in a trial or mediation. Pay attention to your local practice as some jurisdictions use video depositions more often than others; however, keep in mind that juries like to see witnesses. Video depositions also can be very effective for impeachment, although some attorneys prefer to display testimony on a screen for the jury to read. It still may be best to combine the transcript with a video.
The biggest mistakes that young litigators make in taking depositions are: (1) relying on an overly detailed outline and not listening to the witness; (2) being caught up in arguments with opposing counsel; and (3) not knowing the purpose of each deposition (discovery/evidence or impeachment, trial, or settlement). You can improve your deposition-taking skills if you establish a clear purpose and focus on questioning your witness toward that purpose, listen carefully to its answers, and follow up accordingly. Finally, review your transcripts to keep improving with each deposition you take.
Dan Goldman is a litigation partner and Mor Wetzler is a litigation associate with the New York, New York, office of Paul, Hastings, Janofsky & Walker LLP.