The first time I attended a deposition I thought I was extremely prepared. I had pored over every relevant document. I had meticulously outlined the facts. I had painstakingly constructed procedural checklists. Yet, when I sat down in that deposition and watched opposing counsel fluster the deponent, I was reminded that the personalities in the room can be just as important as the facts.
In Avoiding Bad Depositions: A Simple Guide to Complex Issues, Janet S. Kole provides a broad, easy-to-understand overview of depositions. She raises “the key issues you should be aware of when deciding to take a deposition, when you are preparing your questions, and when you are preparing a witness.” And she does so while reminding litigators of the importance of understanding the personalities of both opposing counsel and the deponent.
Avoiding Bad Depositions begins by discussing the goals and uses of a deposition. Kole notes a deposition generally serves as a fact-finding tool, but it may also serve to preserve the testimony of a deponent who will not be available for trial. She discusses the distinct use of a deposition to help a litigator prepare for trial or to prepare for settlement by demonstrating which witnesses and documents support the litigator’s position and the overall strength of the evidence.
The book then explains the relevant considerations when determining who to depose (e.g., Who is most likely to have the facts underlying the subject matter of the lawsuit? If you are trying to get information from a corporation, who is the most knowledgeable individual in the company?), and how to use the relevant documents and pleadings (e.g., What documents or pleadings has the deponent looked at or authored? To whom did she send it? When did she create it or receive it?).
Perhaps the most interesting chapters of the book deal with difficult opponents and deponents. Kole describes difficult opponents as “Rambo litigators,” “[h]ard-hitting, scorched earth lawyers . . . [who] want to be seen as the toughest, baddest dude[s] in court.” According to Kole, these lawyers will engage in any number of disruptive tactics, including objecting to every question asked, instructing the deponent not to answer, refusing to go off the record, belittling the other lawyer, or shouting at the other lawyer or deponent. Kole provides helpful, straightforward tips for dealing with “Rambo litigators,” from keeping a calm demeanor to putting a statement on the record and getting help from the judge.
Kole also describes different types of difficult deponents (e.g., deponents who talk too much, respond with vague answers, are condescending, and lie) and how to deal with those deponents successfully. She notes the importance of understanding the deponent and responding appropriately. For example, when confronted with a condescending deponent, “[t]he most important thing to remember . . . is that you are not going to change his attitude, but you can change his behavior. You will do that by persistently asking the question you want answered, ignoring his editorial comments along the way.”
Avoiding Bad Depositions also addresses the importance of understanding your deponent when defending a deposition. According to Kole, a lawyer defending a deposition may wish to object to a poorly phrased question not because the objection is necessary to the case but rather to demonstrate to the client that the lawyer is on the client’s side and paying attention. She advises lawyers to use breaks, if permitted, to talk to their clients about how the deposition is going, to determine whether to assert a privilege, and to clarify questions or answers. As noted in Douglas E. Motzenbecker’s Litigation News article, “Can Attorneys Conference with Witnesses During Depositions?” counsel should proceed cautiously when conferring with a deponent, as there is minimal guidance on this issue in the Federal Rules of Civil Procedure, and some jurisdictions prohibit or limit such conferences. Litigation News, Vol. 36 No. 3 (Spring 2011).
Although the book primarily highlights broader issues that arise during depositions, its chapters are permeated with practical information regarding deposition logistics. Kole reminds litigators of the different modes of recording a deposition (e.g., transcription, live transcription, or video), the use of stipulations, the importance of referring to documents by name instead of number, the use of errata sheets, and how to cite to deposition testimony in subsequent pleadings.
Despite the discussion of logistics, however, the focus remains on how to interact with opposing counsel and the deponent. When reading Avoiding Bad Depositions, Kole’s passion for taking and defending depositions is clear. As she notes, “anyone who finds people fascinating will feel the same, I think.”
Erin Louise Palmer is an associate editor for Litigation News.
Keywords: deposition, opposing counsel, deponent, difficult deponent, trial tips
Avoiding Bad Depositions: A Simple Guide to Complex Issues (ABA 2015) is available at the ABA Webstore or by calling 1-800-285-2221.