4 Tips for Defending Depositions

Chioma Chukwu
Witness preparation can be exhausting, but it is a necessary evil.

Witness preparation can be exhausting, but it is a necessary evil.

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The prospect of defending depositions can be overwhelming, but it doesn't have to be if you are properly prepared. How should you prepare for a deposition?  As you become more seasoned, your answer to this question may change; however, in the meantime, I have compiled a short list of practical tips to assist your efforts.

Prepare Yourself

As a new attorney, you want to develop good habits that will make defending depositions a breeze. What does this mean? This means you will need to invest time learning your case, inside and out, upside and down. That is before the deposition is noticed. For example, what are the themes of your case? Who is the cast of characters? How does your witness fit in the case? More times than not, by the time a witness is noticed for a deposition, you will have an idea why the witness is being deposed. But make sure to do your due diligence; interview witnesses to establish their knowledge, get a sense of how they will testify, and identify and mitigate their weaknesses. Check mandatory disclosures and any other documents produced during discovery that may shed light on why your witness is being deposed. From there, think about creating an outline. This may help you focus on the big picture, including the information that opposing counsel hopes to glean from your witness.

Prepare Your Witness

In addition to self-preparation, you will also want to afford ample time to prepare your witness. Witness preparation can be exhausting, but it is a necessary evil. You would be surprised how often witnesses, even those who have been prepared, testify for the first time during the deposition about facts never brought to your attention. The only way to reduce the likelihood of this happening is to really know your witness. You may be able to accomplish this in as little as one meeting with the witness.

Goals of a witness preparation should include:

  • familiarizing the witness with the structure and rules of deposition, including objections
  • providing an overview of the case
  • reviewing key documents (e.g., the complaint, discovery responses, and other relevant documents)
  • identifying and working through potential pitfalls
  • practicing hard questions (e.g., role-playing)

Know the Federal and Local Rules

Most attorneys know to become intimately familiar with the Federal Rules governing depositions; however, familiarizing yourself with the rules of your jurisdiction is also a must. Such rules provide guidance on how counsel should conduct themselves during depositions, including prohibiting improper objections or how to create a record of inappropriate conduct during a deposition. Make sure to bring with you a copy of both sets of rules. 

Understand Objections

Make sure you understand the objections that can be properly invoked during depositions (e.g., privilege, form, calls for legal conclusions) and when to object. One of the most difficult aspects of defending depositions as a new attorney is learning to listen carefully to the testimony of your witness while swiftly making objections, but it becomes easier with practice (and of course, preparation). 

Prepare Your Witness.   In addition to self-preparation, you will also want to afford yourself ample time to prepare your witness.  Witness preparation can be exhausting, but it is a necessary evil.  You would be surprised how often witnesses, even those who have been prepared, testify for the first time during the deposition about facts never brought to your attention.  The only way to reduce the likelihood of this happening is to know who your is witness is and what he or she is about.  You may be able to accomplish this in as little as one meeting with the witness; it all depends on the case and the witness.  Goals of a witness preparation should include, but not be limited to, familiarizing the witness with the structure and rules of a deposition – including objections; providing him or her an overview of the case; reviewing key documents (including, e.g., the complaint, discovery responses, and other relevant documents); identifying and working through potential pitfalls; and practicing hard questions (e.g., role-playing).

Know the Federal and Local Rules.  Most attorneys know to become intimately familiar with the Federal Rules governing depositions; however, familiarizing yourself with the rules of your jurisdiction is also a must.   Such rules provide guidance on how counsel should conduct themselves during depositions, including prohibiting improper objections or how to create a record of inappropriate conduct during a deposition.   Make sure to bring a copy of both sets of rules with you.  This can come in handy if you need to educate counsel on decorum and/or read into the record instances of his or her disregard for the rules.

Understand objections.   I am always surprised by the number of experienced attorneys who either fail to understand the proper use of objections during depositions or simply do not care.  Do not become that person.  Make sure you understand the objections that can be properly invoked during depositions (e.g., privilege, form, calls for legal conclusions) and when to object.  I have found that one of the most difficult aspects of defending depositions as a young attorney is learning to listen carefully to the testimony of your witness while swiftly making objections.   But worry not, it becomes easier with practice (and of course, preparation). 

 

These are only few of many tips that you can incorporate into your deposition preparation routine.  To learn more about depositions and how to prepare, visit the ABA’s website.  

Chioma Chukwu

Chioma Chukwu is an employment law trial attorney practicing in Baltimore, Maryland.