chevron-down Created with Sketch Beta.

TYL

Practice Areas & Settings

How to Prepare for Your First Deposition

Danielle Lauren Borel

Summary

  • Preparation is the most important step for successfully taking a deposition. Start your preparation by reviewing case filings and discovery.
  • Start your deposition outline with standard introductory questions. You can and should bring your detailed outline into the deposition.
  • 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.
  • There is a natural tendency to feel rushed in a deposition because everyone is waiting on you. You control the pace.
How to Prepare for Your First Deposition
iStock.com/Cecilie_Arcurs

Jump to:

Seasoned litigators conduct depositions effortlessly. When asked how they became so skilled, the response is often “experience.” While true, this is not helpful for a young lawyer who has never taken a deposition. The following tips and deposition preparation checklist will help you while you’re preparing for your first deposition.  At the end of this article, you will find video examples of how to handle objections from opposing counsel during depositions. 

Initial Preparation Is the Most Important Step

Preparation is the most important step for successfully taking a deposition.

Review Case Filings

Start your preparation by reviewing case filings. You will not know what questions you need to ask a deponent or understand why unless you have a comprehensive understanding of the case, claims and defenses, and relationships between the parties.

Identify Potential Exhibits

Next, you should review the discovery to identify potential exhibits. Exhibits could include documents you need help understanding, documents to establish timeframes, and documents you need to discredit the other party. If it is not practical to review all discovery, at least review the documents mentioning the deponent. As documents highlight key facts or spur questions or thoughts, jot them down.

Perform Online Searches

Finally, don’t forget to perform an online search for other case filings, social media accounts, newspaper articles, and any other sources that may shed light on the other party’s claims, defenses, and motivations.

Attorney Dani Borel explains how to handle an objection from opposing counsel during a deposition.

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.

Attorney Dani Borel walks through the steps for handling a deposition in which opposing counsel continues with inappropriate objections.

Common Concerns During a First Deposition

The following questions often confront young lawyers conducting their first deposition.

Do I move on if opposing counsel asks?

Are you finished making your point? If not, no. You control the deposition, the topics, the order, and how long you spend on each topic.

Have I made my point?

Is the deposition transcript clear enough on your point to cite it for this fact in a dispositive motion? If so, yes. If not, try again with a tweaked version of your original question or by approaching it from a different angle.

Should I argue with the deponent?

Some aspects of a deposition can’t be taught as there’s no clear way to handle them. This is where litigation proves to be an art, not a science. Consider whether proving the deponent wrong would be more helpful to accomplish in the deposition or in front of the jury.

What if opposing counsel objects?

If they don’t like your question or they want to argue with you, do nothing. If necessary, prompt the deponent—“You may answer my question”—and wait for their answer to get things back on track. If opposing counsel has properly objected and your question was in an objectionable form, re-ask your question. You always need to be thinking of whether the testimony could be used to support a fact on a dispositive motion. In the videos at the end of this article, I walk you through how to handle potential scenarios where opposing counsel objects during your deposition.

Take Your Time

Most importantly, take your time. There is a natural tendency to feel rushed in a deposition because everyone is waiting on you. You control the pace. You don’t get multiple opportunities to depose a witness, so it is best to be slow rather than fail to obtain vital testimony. Take your time when you are reviewing your outline and the documents you are discussing. Those pauses or breaks feel like a long time, but they do not appear on a transcript. 

Deposition Preparation Checklist

Initial Preparation

  • Review all filings, pleadings, claims, and arguments presented to date.
  • Review discovery documents or potential exhibits, particularly those on which the deponent is mentioned.
  • Conduct an internet investigation on your deponent, key facts, and witnesses or parties that may be discussed.

Draft a Comprehensive Outline of Questions

  • Jot down all questions that come to mind as you review material.
  • Reorganize all the questions by topic or timeframe.
  • Review the questions on each topic or timeframe to see if there are any gaps. Draft questions to fill in any gaps.
  • Add introductory questions to help you ease into the deposition.

Inside Your Deposition Tool Bag

  • A copy of your outline.
  • Exhibits to use with the deponent.
  • 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 some privilege issues).
  • Any applicable discovery rulings from your court and the local rules of procedure that govern the deposition.

Additional Resources to Help You Prepare for Your First Deposition

    Author