There are two overarching goals in any plaintiff’s deposition: get the facts relevant to each claim and ascertain the claimed damages. Especially in the deposition setting, it is important to discover the facts that the plaintiff is planning to put forth at trial, even the bad ones. Learning harmful facts in a deposition setting is crucial, as it allows you to then be prepared to address them at trial. To tease out all the facts, anticipating where you will need to ask follow-up questions will bolster your preparation and comfort level heading into the deposition. As important as your outline might be, the best depositions are taken by attorneys who have mastered the facts and are adaptable enough to ask follow-up questions when warranted. Often, the reason you need to ask a follow-up question is because the plaintiff is hesitant to disclose more information than is necessary to directly answer your question. More than likely, something the plaintiff is hesitant to disclose is information you want to gain.
Good follow-up questions come from your ability to understand and digest the information the plaintiff provides in response to your questions. The best way to do this is to take your time. Slow down. After each response, pause for a beat and think about whether it is worth exploring further. Depositions are your time, so use it to your advantage. If you need to pause for a full minute before asking your next question, that is entirely reasonable. Your pauses do not show up on the transcript. Slowing down and absorbing each answer is the best way to ask good follow-up questions and ultimately conduct a thorough deposition that will be useful in your preparation for cross-examination.
Preparing a cross-examination builds on the work you put into your deposition prep. This task requires you to review your deposition transcript, with the benefit of additional evidence you have learned throughout discovery to determine what you will say about the witness at trial. Before drafting your cross examination outline, familiarize yourself with the facts of the case and thoroughly review all of the information you have about this witness, including, of course, the deposition. When reviewing the deposition transcript, read and annotate the transcript thoroughly, summarize the main points, and consider what evidence you may have that supports, or conflicts, with that testimony.
Next, determine the goal of examining this particular witness. The specific goals of a cross examination vary, but generally, your aim should be to elicit facts that will be used in closing argument. You may attempt to discredit prior testimony, highlight inconsistencies, establish bias, or elicit facts that help your case. These goals should be front of mind during the entire drafting process. Once you have a strong understanding of the witness’ testimony and how it fits into the overall case strategy, create topics to organize the outline. For instance, when crossing a fact witness, the topics may include: background, relationship to the plaintiff, memory of incident, key points/conclusion. Dividing the cross examination into topics will allow you to create an organized and cohesive outline that will support the theory of the case.
Finally, it’s time to draft the outline. Always ask the attorney that will be examining the witness if they have a preferred method or format for their examination. Starting by topic, use the deposition testimony to draft leading questions. Under each question, provide some reference to the deposition testimony or other evidence supporting the anticipated concession—the examining attorney will need this information at the tip of their fingers to impeach or refresh the recollection of the witness, if necessary. Be prepared to receive feedback on your outline. Every piece of feedback you receive is important to your development. Working closely with experienced trial lawyers to prepare for cross examination is an opportunity to learn. This experience will help you understand how the witness fits into the trial strategy and help you become a more effective trial attorney.
Any attorney’s initial foray into deposition or cross examination preparation is challenging. But proper preparation and a focus on the overall goals will assist in alleviating stress and anxiety heading into the assignment.