January 01, 2019 Sidebar

How to Learn to Take a Deposition

Depositions are the new trials, and therefore the place where you must shake a witness's credibility.

Kenneth P. Nolan

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Back in the ice age when I first started, you had three trials in three different counties all on the same day. So you ran from one to the next, learning how to select a jury, give an opening, ask a question. Your ears would be boxed by the courthouse lifer whose tie told you he had spaghetti marinara for lunch. Judges would sarcastically toy with you, and you’d believe you were making progress until you’d ask one too many and the expert would slice you open with a cogent and devastating response. Eventually, bloody and battered, you acquired experience and expertise.

Now a trial is as rare as a New York politician not under indictment. Everything settles. Whether it’s good or bad is for the law professors and their footnotes. All I know is that you, the litigator, have to position the case so when you’re at your 10th conference, the judge turns to your adversary and snaps, “You better pay more, or else…” (which means she’ll schedule 10 more settlement conferences).

Depositions are the new trials. They determine how and when the case settles. Decades ago, depositions were relatively informal investigations that would last an hour or two. “I have nothing further,” you would announce, staring at the dirty, rotten liar. Just wait, you vow, after my cross-examination, you’ll wish you were never born. It was on the stand where the witness would sweat and squirm.

No longer. You can’t hold back the question, document, video that shocks the witness, destroying his credibility, revealing to the jury the fraud. Now, at the deposition, you have to shatter, or at least damage, the witness’s integrity for we realize this dispute will never see a courtroom.

So how do you do learn this skill, the ability to question a witness? Used to be late one afternoon, the managing partner would toss a file and order: “Hey, we need you to take this deposition tomorrow. You’re free, right?” At an early one, my older, polite adversary kept repeating: “Objection as to form.” I had no idea what he meant. “Form, what the heck is form?” I thought. Finally, I snapped: “What’s wrong with my form?” He patiently explained how all my questions were improper as my face reddened.

It’ll happen to you, too. Builds character. But here are some suggestions on how to take effective depositions:

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