Understand Your Case
The first step in creating an effective deposition outline is to understand the case. You first need to have an encyclopedic knowledge of the facts of the case and the claims and defenses asserted by the parties. This means you should read the complaint, motions to dismiss, answers, crossclaims, and third-party claims. You should highlight matters in the pleadings that admit acts. You should also look for matters in the pleadings inconsistent with known facts. While reviewing these documents, creating a succinctly written timeline with all relevant facts, claims, and defenses noted during your review is helpful. This will help you recall details more easily while drafting your deposition outline.
Review Discovery
You should read all answers to written discovery, such as interrogatories, responses to requests for production, and requests for admission. Remember that the answers and responses were drafted by the party’s attorney and might make fertile areas of inquiry at the deposition. For example, if an otherwise unknown individual was mentioned in a discovery response, it is worth questioning the deponent about their connection to the case.
Study all documents produced in discovery. Look for things in the documents that are inconsistent with the pleadings, answers to interrogatories, and responses to requests for admission. Again, taking written notes while reviewing the discovery is helpful so you can readily cross-reference this information.
Do Online Research
Don’t let your review of the discovery documents be the end of your search for important facts. Instead, augment your preparation by conducting internet searches regarding the parties, the event, and the witness. Public records searches regarding property can be found readily through a basic search engine or a public records search on Westlaw or Lexis. The deponent’s social media activity can also be a powerful tool in drafting your deposition outline. For instance, you may want to inquire about photographs shared, locations visited, and more.
Know Your Elements, Claims, and Defenses
Once you have nailed down the facts, you need to have an encyclopedic knowledge of the law that pertains to those claims and defenses. This means understanding the elements of each claim and each defense. If you don’t know the facts, the claims, the defenses, and the law, your deposition does nothing more than waste your time and your client’s money. In your written notes, jot down the precise elements or factors relevant to the deposition, and consider the facts needed to prove or negate these elements.
Know Your “Why”
While drafting the deposition outline, keep in mind the purpose of the deposition. While gathering information is certainly important, your deposition is not the place to learn what the case is about. Rather, you should use your deposition to search for a winning theory supported by the witness. To achieve this, you need to understand who the witness is. What is the role of the witness in the case? What do they bring to the case in terms of bolstering a claim or rebutting it?
If you are deposing a plaintiff, you want to know everything about the plaintiff, the claim, and the plaintiff’s relation to the other parties and witnesses. The same areas of inquiry apply to deposing a defendant. While asking a defendant about a plaintiff’s damages might seem counterintuitive, you should not pass up the opportunity to do so. You might miss an opportunity to have your opposing party confirm your client’s injuries and damages.
If you are deposing a nonparty witness, thoroughly investigate the witness’s ability to see, hear, perceive, and recall the events in question. Visit the scene before the deposition and note any visual obstructions that could have interfered with the witness’s ability to see the events in question and any background noises, such as construction activity or loud music, that could have interfered with the witness’s ability to hear. Consider whether there were other environmental factors that could have distracted the witness. Incorporate all of these into your outline.
If you are deposing an expert, study the expert’s website. Look for checklists the expert may have posted listing the information needed to render an opinion. Go to Westlaw or Lexis to obtain copies of previous reports authored by the expert and search for cases in which the expert’s opinions were excluded. Study the report in your case. Is this a case in which you might challenge the expert under Daubert? Or is this a case in which you might be able to get the opposing expert to give opinions favorable to your side? Develop a strategy that helps you achieve your goal and incorporate this in your outline. If the case involves technical points, have your expert assist you in preparing your deposition outline to ensure that all relevant areas of inquiry are addressed.
Drafting the Outline
For the most part, your outline should not contain complete questions, just bullet points for areas of inquiry. Break down each area of inquiry into as many subtopics as possible. Too many lawyers take depositions by staring at a script of complete questions and reading them verbatim to the witness. This is counterproductive: You should look at the witness and evaluate their demeanor and body language. Moreover, being tethered to a script can prevent you from following up on an answer that might yield a dozen additional questions. If it comes up, embrace the opportunity to explore those additional questions with a witness. You can always get back to your “path.”
However, there are rare times when it is best to have a script of questions. Good lawyers will use “funneling” tactics, starting with a broad statement regarding a general principle and asking the witness to agree. The questions will then get progressively narrower with each “yes” answer. By the end of the line of questioning, the witness will admit something damaging to your opponent’s case. A good example of this can be found with lawyers relying upon “Reptile Theory” tactics in personal injury cases.
Be Cautious with Artificial Intelligence
Lawyers today benefit from tools not available to my generation when we were young lawyers. Artificial intelligence can be used to create deposition outlines. I recommend embracing these tools in your practice. However, even if you use artificial intelligence to create a deposition outline, you will still need to understand the case thoroughly, including the facts and the applicable law, to use the information as a prompt for the artificial intelligence tool. In doing this, be sure not to include any confidential attorney/client information in your prompt.
Finally, remember that just like any other skill, the more depositions you take and the more work you put into them, the more confident you will become and the better your results will be.
