My first depositions were often frightening experiences. Like most new lawyers, I plunged ahead and tried to do my best, but I rarely felt at ease.
As my discomfort gave way to confidence, I developed techniques I began to use at every deposition. What follow are guidelines, not hard-and-fast rules. But I consider these techniques so useful I continue to use them today.
1. Show Up Early
Always arrive first at depositions. Some lawyers prefer to showboat by arriving late, but they’re missing an opportunity to take charge of the deposition space.
If you noticed the deposition — as in it’s “your” deposition — you can arrange the deposition space any way you like. In cases where another lawyer has noticed the deposition but decided to arrive late, assume he or she will be happy for you to take charge.
If you are going to be questioning the witness, the witness should sit directly across from you. Put the court reporter at your side, usually at the end of the table. The opposing lawyers can sit where they like, but don’t welcome them into the more intimate space you are sharing with the witness and the court reporter.
Stage management is most important when space is limited. When the deposition takes place in a doctor’s office or hotel room, for example, make sure you aren’t shunted off to the side with papers on your lap.
2. Make Small Talk
Even if your stomach is doing flip-flops about what lies ahead, force yourself to make small talk with the other early-arrivers.
Court reporters are good sources of legal gossip that might affect your case, your firm, or your career. Small talk can also lead to a relationship with a trusted reporter whom you begin to request for all your cases.
I once had such a relationship with a court reporter. Small talk before a deposition revealed he was old friends with my parents. He quickly became my go-to reporter. Not only were his transcripts perfect, but he would tip me off about other lawyers and their deposition styles. If asked, he would even tell me what I was doing wrong.
Talk to the opposing lawyers too. Get to know the actual people behind those prickly letters and emails that fill your file. One day, you will be talking about settlement with those people or their bosses.
Consider it another chance for gossip. Many times, I have received the inside scoop on high-stakes litigation from opponents with an unexpected friendly streak. The legal profession is not going to suffer from more comradery among lawyers, and neither will your case.
3. Keep Your Temper in Check
The ethical requirement of zealous advocacy does not extend to rudeness or anger during a deposition.
Though court reporters should always be off limits, I have seen lawyers bully them about equipment snafus or whether an exchange was on or off the record. Whatever momentary advantage these lawyers gained, they lost in terms of damage to their reputations.
What about yelling at opposing lawyers? As I’ve learned from hard experience, shouting matches and all lesser displays of rudeness are counterproductive. Rather than yell during depositions, I now try to get more sleep the night before.
Yelling at witnesses? Never. There are many ways to control a witness. Raising your voice isn’t one of them.
4. Don’t Be a Slave to Your Outline
I’ve written an entire book about deposition outlines. But outlines should be a tool, not a crutch.
We have all seen lawyers so wedded to their outlines they fail to ask important follow-up questions. Instead, they plow ahead, eyes on their notes rather than the witness, not slowing down until they’ve gasped out their last scripted question.
The better approach is to follow answers where they lead. Abandon the outline completely if that’s what your gut tells you to do. Toward the end of the deposition, call for a break, consult your outline, and keep going if you have missed something important.
Outlines can also bloat depositions beyond what a case requires. Always be as brief as possible. It’s easier said than done, but what a windfall for everyone when it happens.
5. Be An Active Listener
Sometimes a witness will answer a question other than the one you asked. Unless you are listening carefully, you might not realize how skillfully the witness has just evaded you. Do not move on to the next question unless you have heard and understood the witness’s answer.
When another lawyer is questioning the witness, you have another opportunity to actively listen. Every question must be parsed in real time so you know whether to object.
You should also listen to yourself whenever you are speaking on the record. Even if you know what makes a good deposition question, practice overhearing your own words as they exit your mouth. I do this by visualizing my questions as I say them, as if I am reading them already printed in a transcript.
Not only will your questions improve, but you will eliminate the “okays” and other throat-clearings that mar so many transcripts.
6. Critique Yourself
The most valuable habit I developed as a young lawyer was to systematically critique my own performance.
For at least my first hundred depositions, I took notes immediately afterwards. I recorded the case, the type of deposition, the names of the court reporter and the other lawyers. I then assessed the results — what went well, whether I met my goals, and how I screwed up. I also paid attention to the other lawyers in hopes of learning from the more experienced.
After receiving the deposition transcript, I had a second opportunity for self-criticism. For those first hundred depositions, I read my transcripts carefully, sometimes marking up a copy with suggestions. I also kept my best depositions on hand for later reference.
These notes and transcripts helped me prepare for my next deposition. Some early examples of repetitive mistakes: agreeing to stipulations I didn’t understand, fumbling with deposition exhibits, getting rattled by objections, and failing to pin down witnesses.
As a new lawyer, I learned to do depositions mostly by trial and error. If that’s your experience too, you’ve probably developed your own set of useful deposition techniques. Consider adding to these six that have proved so useful to me.
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