For new associates, conducting your first deposition can be a fear-inducing venture. But depositions play a key role in the litigation process. As a new associate, the first, second, third, and maybe even fourth deposition you take can fill you with dread. But remember: It does get easier with practice.
Some law schools offer litigation training, but not much time is spent on depositions. Interestingly, many civil litigators spend more man-hours conducting and attending depositions than spent conducting trials. For this reason, it’s important for young attorneys to bear in mind a few tips while conducting and defending depositions.
1. Be Confident
The first thing to remember when conducting depositions is maintain composure and confidence. Remember that you can easily become your own worst enemy if you think in terms of “success” or “failure” during the deposition. It’s a discovery tool and not the actual trial. Sitting in on a deposition can go a long way toward easing into the process and allow you to focus more clearly on fact-gathering.
2. Be Prepared
It goes without saying that young litigators are workhorses, who usually know the case details inside and out. But, prior to a deposition, it’s important to reexamine key discovery, study your file thoroughly, and consider any facts that may require additional development through testimony. Additionally, it is helpful to consider your case strategy as you prepare. Your theory of the case will help to guide your course of questions.
3. Use Bullet Points, But Don’t Write an Extensive Outline
Aside from the initial script (including the rules governing the interview, offer of breaks, etc.) refrain from writing out long prepared questions. Write out your points of questioning in order in brief, bulleted statements. Remember that you are soliciting information from a live person, who will easily get grow bored by hearing you read aloud. Furthermore, you can get more out of a witness if you can turn the deposition into a conversation, flow with the conversation and, as you move along, strike points from your outline as they arise during the deposition to remind yourself that a specific topic was covered. A deposition may go on tangents throughout the course of testimony. Those tangents can lead your witness to a place where they are talkative, comfortable and ready to reveal valuable information unprompted. Allowing yourself to stray from a rigorously prepared outline often yields results.