An experienced lawyer controls a deposition. She is confident, purposeful, and gets right to the point without getting distracted along the way. She begins the deposition with a plan, then adapts it in real time as the deposition unfolds. She keeps the witness under control and ignores any shenanigans by the opposing counsel.
Lawyers who fit this description are deposition pros. Even if you are just starting to take depositions, you can learn to become a pro, too. Here’s how.
1. Begin the Deposition with a Plan
Deposition pros are defined less by their years of experience than by the careful planning they put into every deposition.
Start by reviewing the pleadings and becoming familiar with the claims and defenses — the “story” of the lawsuit. Next, become familiar with the governing law by looking at the pattern jury instructions that are most likely to be used at trial.
As you are reviewing the jury instructions, think about the way the facts of your case are likely to be presented to a jury. Just as important, consider your opponent’s evidence, and how you are most likely to challenge it.
Next, review the rest of the file, including the document production and responses to written discovery. Learn what you can about the witness and the deposition style of your opposing counsel. Review the court rules that will govern your deposition. Consider contingencies like the need to seek relief from the court for bad behavior by your opponent.
With these preliminaries accomplished, you will be ready to prepare a thumbnail outline listing the topics you want to cover. You can also select any documents you may use as exhibits.
As you compose your outline, consider the purpose of your deposition. Your purpose might include confirming your theory of the case, discovering new facts, assessing a witness’s competence and likability in front of a jury, preserving testimony for trial, or demonstrating the strength of your case.
As you are preparing your outline, it is not necessary to write out every question you are going to ask. You want to know where you are headed, but you do not want the outline to be too specific. You don’t want to become a slave to your outline. Instead, you want to be flexible enough to follow the witness if he or she veers off in an interesting direction you didn’t anticipate.
2. Ask Questions That Are Short and to the Point
Thanks to your preparedness, you will begin the deposition with a clear idea of what you want to accomplish.
Although some lawyers try to wing it at depositions, your manner will be exactly the opposite. You will not find yourself asking unnecessary questions just to hear yourself talk, hoping that you accidentally uncover some useful topics for inquiry.
Instead, you will dive in with productive questions that will help you accomplish your deposition goals. Since your deposition goals are based on a solid foundation of knowledge about your case, you will not be tempted to abandon your goals during the deposition without good reason.
As you ask questions, make certain they are well-crafted. Deposition pros favor questions that are short, succinct, and in good deposition form.
Make sure you consciously overhear yourself talking then visualize your questions as they will appear later in the transcript. This is a guaranteed way to keep you focused on your questioning technique. It will also help you to eliminate the “okays” and other needless throat-clearings scattered throughout so many deposition transcripts.
3. Maintain Control Over the Witness
Some witnesses will go out of their way to make your depositions more difficult. As a deposition pro, you know how to maintain control over a witness. Some general rules follow.
When the deposition begins, the witness is probably thinking about his lawyer’s advice (or if unrepresented, advice they’ve read on the Internet), not to volunteer any information. The witness might even think his role is to actively hide things from you.
If you ask such reluctant witnesses a few open-ended questions, they will quickly forget their lawyer’s advice. Open-ended questions require the witness to volunteer. Example: “Tell me about the collision.” “What happened then?” “And then?”
Once you get them talking, most witnesses will relax. This does not mean you should relax of course. As a deposition pro, you should always be skeptical of the witness’s answers. From this point, you can keep the witness under control simply by maintaining a confident attitude.
There are exceptions. The most difficult witnesses will act as if they are in charge. A couple tricks can put them back on track:
- Quickly switch back and forth between topics.
- Vary the pace of your questions, alternating between slow and fast.
Both of these methods will keep the witness off balance, which will force them to pay closer attention to you.
Some witnesses will try to outwit you by answering questions you never asked. Some lawyers do not even notice the witness has given an incomplete response. Watch for this behavior by listening closely to the witness’s answer. When a witness does not answer your question, maintain control by asking the question a second or even a third time. The witness will quickly learn that by failing to answer your questions, they are only wasting time.
4. Ignore Your Opponent
As a deposition pro, you know it usually makes sense to ignore your opposing counsel. When the opposing counsel sighs, or rattles a newspaper, or behaves like an idiot by making a form objection to every one of your questions, your best course is simply to stick to your plan. When you retreat from your plan and begin to argue with your opponent, you are only giving him what he wants.
The exception is form objections that are valid. Even a deposition pro asks the occasional poorly-phrased question. When you hear a form objection, you must at least consider it. If the objection is valid, you should ask the question again. (Deposition pros can quickly recognize valid form objections, and figure out how to fix the question on the fly. ) If the other lawyer objects to your corrected question, ask the witness to answer over the objection and move on.
It is not always easy to ignore your opponent. Some lawyers are so consistently obnoxious that you feel you must respond.
Rather than argue, think about court intervention (or “punching a bully in the mouth“). Since you reviewed the court rules before the deposition began, you will know whether it makes sense to suspend the deposition in order to file a motion with the court.
If suspending the deposition is not an option, you will have to maintain your composure and carry on. If you start an argument with the obnoxious lawyer, you are walking into the trap he has set for you. You can try to win the argument, but you should have more important goals. And as a deposition pro, you always keep these goals in mind. (While making a note that the next time you meet the obnoxious lawyer, you should consider videotaping the deposition.)
5. When You Are Finished, Stop
No one said a deposition must take all day. Sometimes, a deposition doesn’t even need to take an hour. It all depends on your plan, the one you put together well in advance of the deposition.
As a deposition pro, you go on just long enough. When you are asking questions, you are making headway, even if your opponent cannot see it. You are not asking questions merely for the sake of asking questions.
When you have covered the points you want to cover, you stop with confidence that your initial deposition plan was complete. But do not completely stop until you have called for a break and reviewed your notes. The deposition pro always looks back over her outline before turning over the deposition to another lawyer.
When everyone has finished asking questions, check with the court reporter about the procedure for getting the transcript. Then say your good-byes to the witness and to the other lawyers. You’ve just concluded your first deposition as a pro.
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