Watch and Learn
One of the most important ways I have learned is by watching others. If you have the time and opportunity, try to sit in on other attorneys’ depositions. Different attorneys have different styles. What works for some may not work for everyone. By seeing others take a deposition, you can get a better feel for what works for you. In addition, you will have the added comfort of knowing how a deposition progresses. There is relief in seeing others do something you have never done. It is no longer an unknown. If you have seen depositions being taken before, you may now view them in a different light, knowing you have your own specific deposition to take in the future. Absorb as much as you can, and study from others.
Know Your Case and Goal
Knowing your case may seem obvious advice, but you may not immediately realize how much you need to prepare. Many attorneys spend hours preparing for a deposition that ultimately takes a half hour. While there is no substitute for experience, you can mitigate your inexperience by putting in extra work. For your first deposition especially, your supervising attorneys likely expect you to take longer to prepare than one normally would. Use this latitude to your advantage.
Know exactly what you want to get out of your deposition and your witness. Your preparation differs depending on whether you depose a fact witness, an expert witness, or another sort of witness. What do you hope to accomplish with this deposition? Are you looking to pin down specific facts, enabling potential impeachment evidence in the future? Do you want to learn more about facts not in the record? Will you use open-ended or leading questions? You should have specific goals in mind, and your deposition strategy should look to advance those goals. If you are deposing a fact witness, know how the witness relates to the case and how to best develop the facts using the witness’s testimony. If you depose an expert witness, know the expert’s background and have a grasp of the expert’s field, including the technical jargon the expert may use while testifying and potentially bases for his or her opinions. One of the best things about being a litigator is the opportunity to learn new subjects. Embrace it.
Know the facts and underlying evidence thoroughly so that you may more easily follow the witness’s testimony and thus respond appropriately. While you might not always know everything a witness brings to a case, you should have some idea. Such a level of comfort will allow you to listen to the witness’s answer. Listening requires active attention. What may sound like an answer to your question may actually be unresponsive.
Maybe the witness mentions something new that is not in the case file. If you are unprepared, you will not catch the new detail and may miss the opportunity to further explore it. This deposition is your opportunity to get witness testimony on record. You will use the deposition to gain a shared understanding of the facts with opposing counsel, support your motions, and potentially impeach the witness during trial. It is absolutely vital you know your case so that you have the confidence to identify gaps or inconsistencies, instead of ascribing the new or differing detail to merely something you do not recall.
Have a Conversation
An inexperienced attorney may feel compelled to write out his or her questions in advance. This method can be an acceptable way to prepare. It helps you get your exact thoughts down and identify specifically what you hope to learn. It also requires you to articulate your questions. However, sticking to this rigid script during the actual deposition is likely to be problematic. Instead, repurpose your written questions to create a general outline. During the deposition, use this outline to jog your memory as to what you want the witness to discuss, ultimately enabling you to have a conversation.
General outlines are beneficial in that they allow you the freedom to have a conversation. Certainly, you want your questions to be well formed, clear, and precise. That desire for form, though, sometimes gets in the way of questioning, listening, and then responding to a witness. You may be tempted to ask your written question, wait for the witness to finish responding while your eyes roam to your next written question, and then ask your next written question once the witness goes silent. While this approach may seem cleaner, it will likely result in a less successful deposition.
Sometimes a witness does not answer your question the way you would expect. Whether the witness is nervous, has an unclear understanding of your question, or maybe even wants to evade, you need to listen to be effective. A general outline forces you to listen and have a conversation. Do not worry about taking detailed notes. Instead, focus on listening and responding accordingly. To help you remember, briefly write what you want to further explore in your general outline. Detailed notes can be taken later while reviewing the transcript.
Note Objections and Proceed
As a junior attorney who has followed the aforementioned advice, you may feel confident in your preparation and understanding of the deposition. You have a conversation with the witness, the witness is responsive, and things seem to be flowing well. Then opposing counsel objects. How one approaches these objections is a significant factor in taking a successful deposition. While the rules of civil procedure vary in each jurisdiction, Federal Rule of Civil Procedure 30(c)(2) is quite telling about how one should approach objections: Note them and proceed with the examination. Objections are made to be noted for the record and in a nonargumentative manner. The only instances where a witness will not answer your questions is when the question involves a privilege, when a court-ordered limitation is enforced, or pursuant to a motion to terminate under (d)(3).
Often opposing counsel objects in order to preserve the record. Take a second, silently consider the objection, and if it has some basis, consider a different way to approach your goal that does not draw an objection. Sometimes, though, these objections, and even off-handed comments, lack legal basis and instead seek to rattle your confidence. Do not get involved in an argument. If you disagree and opposing counsel baits you to argue, merely acknowledge the objection and then direct the witness to answer your question.
These sorts of objections are solely meant to dissuade you from being aggressive and precise during your questioning, along with draining your energy and diverting your focus. Relax, take your time, and continue working toward your goals. A deposition is not the proper forum to argue objections. Even if you think you are right, the transcript may later demonstrate otherwise. With experience, you will develop a ready ability to differentiate between legitimate objections and ploys to distract.
By now, I have jumped out of planes numerous times. I have my exact routine down on exiting an airplane mid-flight. I have also taken numerous depositions. I have my exact routine down on taking testimony. I developed both of these skills through experience, adjusting and refining my approach with each repetition. What currently seems routine once was nerve-racking. Today, though, both duties are just another day as a judge advocate, and so it will be for you too. Take comfort in knowing that even the most seasoned litigators have once been in your position. Use this opportunity to do your best and have an eye toward learning from your mistakes. As you develop into a more experienced attorney, do not forget the feelings you faced prior to your first deposition. Work toward teaching and mentoring others junior to you. Continue seeking out more experienced attorneys, and be willing to learn. You will surprise yourself by realizing how quickly you develop and how much you can still improve.