When I was a brand new lawyer, few things struck fear into my heart like the idea of a deposition. I had been told that while young lawyers may be inexperienced, we can make up for our inexperience through exceptional preparation. But it seemed to me then that a deposition could easily go sideways, despite the best laid plans and preparation. As a Type-A personality, the one thing I craved the most (besides 20 years’ legal experience zapped into my head like magic) was control! Depositions seemed like breeding grounds for uncontrolled legal free fall.
My first deposition probably didn’t help my phobia much. As I questioned the witness about a key aspect of the case, she gave me an answer I wasn’t expecting — an answer that was way worse for our case. An answer that I was pretty sure wasn’t true! Panic! Nightmare realized! I spluttered through and eventually got her to back off from her answer (sort of), but it was not a good feeling.
I’ve done enough depositions now that I mostly feel comfortable, although I still have years to go until I’m an old pro. One thing that helped my confidence was attending a three-day “Deposition Skills” CLE through the National Institute for Trial Advocacy (NITA). This program was intense and at times embarrassing (yes, there was lots of deposition role-playing), but also rewarding: I realized during that CLE that I was not alone in my deposition phobia. So over the next few months, I’ll be writing a series of posts about deposition skills with some of the key tricks and tips I learned from my class. But these posts should not be considered a replacement for attending a NITA program: NITA offers a variety of classes and CLEs on trial and litigation skills. Their complete course offering is available at www.nita.org.
First Lesson: Admonitions
“The what?” you ask. You know, those things you tell the witness at the beginning of the deposition, your canned speech, etc. Lawyers have different styles, but the following represents a good set of initial remarks.
- Ask the witness if she has ever been deposed before, and explain the logistics of the deposition.
- Tell the witness that you are seeking complete information that encompasses all of his knowledge on the subject.
- Tell the witness that he is welcome to ask for a break, but to answer any pending question before going on break.
- Explain the need for oral answers for the court reporter’s benefit, and for each person to talk one at a time.
- Tell the witness to ask for clarification if she doesn’t understand the question.
- Tell the witness to let you know if she remembers anything new or needs to correct an answer later in the deposition.
- Tell the witness that she should not confer with her lawyer before answering a question, unless she needs to discuss an issue regarding privileged communications.
This entire process is pretty straightforward, and it is a good warm-up to get you in deposition mode. The most important thing I learned about this process was that you should not just drone on. Instead, get confirmation or commitments from the witness. Instead of just stating to the witness, “If you don’t understand a question, let me know,” ask the witness, “If you don’t understand a question, will you let me know?” Make the witness orally respond “yes” on the record. This way, it gives you more leverage over the witness at the deposition (“You agreed that you would respond to a question before conferring with your attorney, didn’t you, Mr. Smith?”), and makes it more difficult for a witness to wriggle out of his testimony at trial (“Now, you agreed at your deposition that you would let me know if you didn’t understand the question”). While the difference is subtle, it can help.
In my next post, I’ll get into the grit of direct deposition questioning. NITA promotes the “funnel method” of questioning, where you seek to gather all the information about a topic before drilling down into the details. This analytical framework can help you get thorough and complete information from the witness, as well as walk away with a useful transcript.