Deposition Skills for Young Lawyers

On October 10, 2024, the Products Liability Litigation Committee’s Young Lawyers Subcommittee hosted a panel on deposition skills where Clifford Kinney and Rory Crowe delivered invaluable guidance. A summary follows below. 

Preparing to Take the Deposition 

• Seek out opportunities to shadow senior attorneys before diving into your first deposition. Exposure to different attorneys with different deposition styles will help you identify which strategies may work for you, and which may not.   
• Take time to develop your theory of the case before diving into a deposition. 
• Understand how the deponent fits within the theory of the case and what admissions you need from this deponent for summary judgment and trial. 
• Remember to file an appearance before taking the deposition. While it is rare, opposing counsel may object to your taking the deposition if you have not filed an appearance.

Drafting the Deposition Outline

• Read the complaint. This seems apparent, but some attorneys may skip this step. Know what the claims are and what the plaintiff’s burden of proof is. 
• Review written discovery responses and documents produced. Know the record cold before taking a deposition. Review relevant social media content and publications, if any, authored by the witness.
• Create a timeline of events based on your review of the discovery. Having a “cheat sheet” with key dates can help keep you oriented throughout the deposition. 
• Use documents strategically. Select documents that will help you build your narrative through the witness and/or facilitate key admissions needed for summary judgment or trial. (If you are showing confidential client documents, ensure that the witness signs the applicable protective order in the case.)
• Write out the questions for your first several depositions, but do not read them verbatim if you can help it. Having your questions drafted may help with nerves. 
• Think through sequencing of questions. Start with topics that will help you to build rapport with the witness. Move through topics in a natural sequence that allows the witness to follow along. Group your questions into key topics or goals.  
• Practice asking the questions you prepare. A question may read beautifully on paper but be confusing when spoken. Anticipate witness responses and how you will follow up, and practice the follow-up before it happens.
• Determine whether there is a deposition protocol in the case. Review any applicable deposition protocol carefully and take a copy with you to the deposition.

Deciding on In-Person vs. Video

• Several factors may impact the decision on whether to take a deposition in person or by video. Document-intensive depositions may be better suited for in-person depositions, and it may be easier to build a rapport with a witness in person. On the other hand, video depositions are less expensive, and it is important to understand your client’s preferences related to travel expenses.
• If the deposition is by video, it is important to familiarize yourself with the appropriate technology before the deposition. Most court reporting services will set up free training to walk you through the technology. Ensure you understand the technology and are comfortable sharing exhibits using the platform.
• Prepare for the possibility that technology may fail and consider your backup plan.

Taking the Deposition

• Be conversational and build rapport with the witness. Aggressive confrontation can make witnesses defensive and be counter-productive.
• Listen to the witness! This cannot be overstated. Be prepared to pivot and move around your deposition outline.
• If the witness did not answer your question, say so. Do not move on until you get an answer but be sure to keep your composure and stay professional. Be prepared to ask follow-up questions you may not have thought you would need to ask. 
• Be deliberate and take your time. If you do not get the answer you were looking for the first time, be prepared to break down your questions and take it one step at a time. Practice doing this with important questions. 
• Lay the predicate for your questions. You cannot go straight for the goal-line question. Think about what questions you need to ask first in order to set the stage for your ultimate question.
• Ask questions with confidence. Be prepared to explain what you mean by the terminology you’re using. 
• Be prepared to rephrase your questions, and practice doing so. 
• Do not be surprised if the witness does not recall documents or events. Be ready to walk the witness through the records that establish key facts so that you are not relying on the witness’s memory alone. 
• Take breaks as needed to review your notes and collect your thoughts.   
• Before ending the deposition, review your list of goals to make sure you have covered everything you needed to with the deponent.

Objections from Opposing Counsel 

• Know the applicable rules in your jurisdiction related to objections. See, e.g., FED. R. CIV. P. 30(c)(2) (“An objection must be stated concisely in a nonargumentative and nonsuggestive manner”).
• When presented with form objections, consider asking opposing counsel for the basis of the objection. You may want to fix your question.
• Ignore lengthy speaking objections and stay focused on the witness. Remind the witness to answer. If needed, address improper objections with opposing counsel. 

After the Deposition

• Read the transcript! This can only help you grow and develop.