Second-chairing a deposition doesn’t mean sitting on the sidelines, watching a teammate grab all the glory. Instead, much like a coach training the team for a game, your role as second chair is to make sure everyone is properly prepared for the competition and has everything needed to succeed. Especially when the opponent pulls an unexpected move, the second chair needs to be ready to huddle with the team and outline the next plays on the clipboard.
The second chair’s work starts with solid pregame preparation. When defending depositions, this means gathering information based on key themes to make the case, avoiding surprises, and practicing testimonial-quality answers. When taking depositions, this means building the arsenal for questioning the witness. After all, the more practice on the field, the better any team does come game time.
Typically, to begin, you should look for documents produced in the case that relate to the deponent. This includes not only documents a witness authored or received but also documents of interest for the witness thematically. Previous deposition exhibits can provide the best starting place. And, like watching a rerun of your opponent’s last game, any prior testimony of the deponent is another critical element. You should scour this testimony for impeachment material. Other witnesses’ testimony about the deponent may also be revealing. Social media profiles or blogs also may be useful.
Like athletes’ workout routines, deposition-prep styles can differ. For most, preparation starts with an outline of deposition topics. This can range from a bullet-point list to a more detailed analysis to actual direct or cross-examination questions. The starting point typically is to reflect on the key factual and legal themes from each side’s perspective. What are the main offensive points the witness can score? Defensively, what facts or admissions might be obtained from the witness that can be used at trial? List those issues in the outline, and include corresponding questions.
And don’t forget to check the local rules and the court’s orders in the case. For example, does your jurisdiction or judge have rules on permissible forms for objections? Does privilege attach to witness-attorney conferences during breaks? Do protective orders contain any deposition-related confidentiality provisions?
When you are defending a deposition, you have another star player to prepare—your witness. There, your job is to hammer strategy points and, after time outs, send the witness back into the game with valuable tips. (Local rules will vary on how much coaching you can provide mid-deposition, so make sure you study them well.) As the coach, you should keenly observe each play and rattle off feedback every time you get the chance. For example, you should check the source of any unfamiliar documents shown to the witness, spot potentially privileged documents, research any unanticipated subject area that comes up during the testimony, and listen for answers that contradict the witness’s recollections during preparation.
Each segment of a deposition is like a period of a sporting event: You want to dominate not only the tone and content of the testimony but the pace as well. Many examining attorneys will try to build momentum to help win points against witnesses who may be less familiar with the rules of the game. When the clock is running, the examining attorney’s full concentration is focused on formulating questions, assessing the witness’s answers, and aiming to fire off the next question. While the examiner is on the field, the second-chair attorney should be manning the playbook in real time. Look out for answers that jar with documents or other testimony; spot weak answers that call for further follow-up; and make sure that all the intended topics and themes are addressed.
Over the course of a standard single-day deposition, the attorney taking or defending a deposition has precious little time to assess the overall progress and import of the testimony, but you, as the second-chair attorney, will. Because depositions are often the only chance to examine a witness before trial, sharing your keen observations during and after the deposition is essential.
Successful second chairs neither sit silent on the sidelines nor cheer from the bleachers. They carefully plot strategy, steadily execute it, and keep score throughout the game. And when everything goes well, they share every bit of the glory as the first chairs and witnesses they coach to victory.