Put Pen to Paper on Your Questions
Review the thoughts you jotted down to create a list of deposition objectives. Consider every aspect of the element, claim, or defense at issue. What information do you need to understand the case better? What information do you need to nail down? Do you have filings that you will need to support with witness testimony? After you have discerned all potential questions from documents and topic areas, reorganize your questions so they are arranged chronologically. By reorganizing your questions, your attack plan will not be obvious to opposing counsel.
Start your deposition outline with standard introductory questions. Introduce yourself, ask the deponent if they’ve ever given a deposition and, if so, ask about those depositions; lay out ground rules; ask what they did to prepare; then present and attach the deposition notice as the first exhibit. While this is a predictable start to your deposition, it provides an opportunity for you to settle in at the hardest part of the deposition: the beginning. It also allows you and the deponent to speak casually before turning to the contentious facts at hand, which helps you meet your most important objective: to get the deponent talking.
You can and should bring your detailed outline into the deposition. You don’t have to use it, but it will remind you of your objectives and help you check if you’ve missed anything as the deposition proceeds.
Prepare Deposition Exhibits
Once you have identified the exhibits you will use at the deposition, you will need to create copies of the exhibits for yourself, the deponent, opposing counsel, and the court reporter. Consider having a personal copy of each potential exhibit on which you highlight what needs to be discussed and then having clean, separate sets of that same document to share with other attendees. Highlighted documents keep a deposition flowing and decrease the lag time between questions by providing a clear visual roadmap of the aspects to be discussed. This is particularly helpful when dealing with lengthy documents such as contracts or email chains.
Packing Your Deposition Tool Bag
In addition to your outline and exhibits, prepare and bring a timeline of events for your personal reference; key case law or law that might present an issue (particularly if you suspect there may be privilege issues); applicable discovery rulings from your court; and the rules of procedure governing the deposition, including local rules. You are now ready to take your first deposition.
Taking the Deposition
The beginning of a deposition is the point where a young lawyer’s imposter syndrome often kicks in. “Sure, I have a list of questions, but what do I actually do?!”
First, breathe. Second, remember that a deposition is only an interview of an involved party. Third, be yourself and be confident. If your normal trial style is sharp and punchy, ask sharp and punchy questions. If your style is conversational, be conversational. There is no right way to conduct a deposition, but it is apparent when someone is not comfortable.