Comments on: Deposition tips

Question: Deposition tips

KimikoPi — Sun, 08 Jul 2007 19:23:31 -0800

Give me some tips for my first deposition

I am taking a witness' deposition next month - my first one. Teach me, Obi-wan. It is not the defendant, but a witness that collaborated with the defendant.

By: alms

alms — Sun, 08 Jul 2007 20:01:23 -0800

OK, so just to clarify: you are an attorney, and you will be taking a deposition from someone? You are not being deposed (testifying, so to speak), but are deposing someone else?

My favorite first deposition story was from my friend Rebecca, who was a first year associate at a big firm. Going into the deposition with a partner, the partner turned to her and said, " has a reputation as sons of bitches. I don't want you to say anything in this room that hurts that reputation."

Take that as you will.

By: ajr

ajr — Sun, 08 Jul 2007 20:35:18 -0800

I would start here , then listen to podcasts episodes 49 and 50 from here, then review these posts.

By: Ironmouth

Ironmouth — Sun, 08 Jul 2007 22:24:51 -0800

Here's a tip--use a litigation pad, which is a legal pad with a line down the middle. Short hand the answers on the right hand side and new questions for redirect on the left. Works wonders. Have most of the questions you want written out already, but it is not a script.

By: Ironmouth

Ironmouth — Sun, 08 Jul 2007 22:25:29 -0800

sorry got my right and left messed up. You know what I mean.

By: footnote

footnote — Mon, 09 Jul 2007 05:59:23 -0800

This is ridiculously vague, but when my friend was about to take her first dep she read some book that's apparently the Deposition Bible. I can't remember the title now. Anyone?

By: AgentRocket

AgentRocket — Mon, 09 Jul 2007 08:36:57 -0800

I imagine the "Bible" is "The Effective Deposition," which is the book NITA gives you when you take the course. It is good.

As for little tips:

Tip 1:Depending on what you are looking for from the deponent, the extended pause after a deponent's answer can work nicely. Remember that - unless you are doing videotape - the only product of the deposition is the transcript, and pauses don't show up. It is a natural inclination of someone to want to fill silence, and deponents are already a bit flustered by the whole experience to begin with. So after they answer a question, if you want more from them than they answered, just sit and look at them for a few seconds. Smart or well-trained deponents may get it and keep quiet, but many of them will give you more.

Tip 2: Don't back away from a question when you get an objection, but think about whether you need to rephrase it. If the other side is jerky, s/he may sense that you are new to this and throw up a bunch of objections to throw you off. You can either direct the deponent to answer the question or you can rephrase it. I usually rephrase, as most lawyers I've dealt with are lazy and when you rephrase it they (a) appreciate your apparent acknowledgement that it was a fair objection, and (b) do not object to the rephrased question, which leaves you with a clean question and answer.

Tip 3: Ask for the home address of the witness. Everybody knows that information, so it's an easy opening subject, and if you need them at trial this will give you an easy way of determining if they are within the subpoena power of the court.

Tip 4: Do not try to make little jokes. I have a tendency to do this to break the ice or try to make people feel more at ease, but generally it looks doofy and does not translate well in the transcript.

Tip 5: Unless absolutely necessary, do not raise your level of anger/hostility to match the other side's. Opinions on this vary, but I think that when one side is being a jerk, the best thing you can do is stay cool. The transcript looks much nicer that way, and they will lose credibility both with their own client and (later, possibly) with the Court.

Tip 6: This is really the most important one. Prepare. Like a crazy person. Prepare prepare prepare. Sketch out your important questions and themes. Think about the admissions that you want from that witness and how to get them. Prepare an examination where you know most of the answers before you ask the question. Know the documents. Know everything there is to know. There were a number of third-party depositions in a case that I was on where some of the attorneys basically winged it, and they left a lot there. That left them in a hole they had a hard time digging out of.

Tip 6.5: Do not assume that just because you have been given this deponent he/she is a bit player and not important to the case. Treat it like it is the key witness. You owe it to your client and it will help focus your preparation.

Good luck. I was terrified at my first several depositions. But after you get some experience, you will get used to it and soon you will only be really really scared.

By: edjusted

edjusted — Mon, 09 Jul 2007 09:53:21 -0800

Coming from the other side...I had to give a deposition for a defendant. IANAL so sorry if I'm misusing terms. Opposing counsel were being total ***** to me. Even though I didn't have anything to gain by being evasive or uncooperative, I did it anyway just to spite them. Maybe this is a lawyer technique, maybe not. But from the other side of the table, I'd say be respectful to the witness. You might get more cooperation out of it.

By: KRS

KRS — Mon, 09 Jul 2007 14:24:46 -0800

The best set of tips I've found is the article "Making Depositions Stick" in Litigation Magazine, about 10 years ago. Most law libraries will have it.

By: footnote

footnote — Mon, 09 Jul 2007 16:44:07 -0800

Oooh, piggyback question: AgentRocket, that NITA course looks great, but pricey for a non-big law lawyer ($1295). Is it worth it?

By: dios

dios — Wed, 11 Jul 2007 12:51:33 -0800

Funny you should ask this. I am listening into a deposition by telephone right now in a case with about 12 attorneys. My first bit of advice is: don't do telephone depositions. But anyhow, this gives me the time to answer your question.

Cases are won or lost at the deposition stage.

So the key to taking depositions is to understand that fact and prepare accordingly. Know the case inside and out. Know what must be proved and how this witness proves or disproves things. Know what the other witnesses have said. And know it all better than the person sitting at the other side of the table from you.

When you begin, your first objective is to soften up the witness. The witness will be on edge and ready for the money question right off the bat. Don't give it to them. Save that for later. Start with easy and non-threatening questions. This lightens them up and you. It allows them to get them in the flow of answering the questions you ask. Also ask them if they have been deposed before and tell them what depositions are about. Let them know that if they need a break to let you know and you will give them one. Tell them its not an endurance test. Ask them if they will agree to try to let you finish asking your question before they answer even if they know where you are going with it because if they don't, it makes it hard for the court reporter to get it all down. Let them know you will agree to try to let them finish their answers before asking a new one. Let them know to inform you if they don't understand a question. Basically, try to let the witness know you aren't there to fight with them. Background questions do the same (where you live? grew up? school? jobs? family? etc)

After asking them fluff questions for an hour or so, start asking meatier questions about the incident in question. Witness start to play hard to get then. But don't let them dodge questions. If they say they don't know you mean, ask them to tell you what part of the question do they not understand? If they say "I don't know what you mean by X." Respond with, "What do you think X means?" and then have them answer the question with the definition they think (because it is usually exactly what you meant). Basically, don't let them dance. Lock them into your question and their understanding of it and keep asking until you get a clear answer.

Towards the end, I try to lighten it back up slip in some followups. I always try to end by thanking the witness and asking them if I have been courteous and respectful to them. They will invariably say yes, and it prevents any later attempts of the other attorney from suggesting otherwise.

The most difficult part of taking first depositions is confidence. You have to own the room. Know where you are in space and time. Don't be intimidated by the other attorney. Don't let the other attorney control your flow or the witness.

Other practical deposition tips:
- Know your states rules on deposition objections and instructions (form only? speaking?)
- Videotape every deposition
- Don't script out all the questions; outline topics
- Take notes as Ironmouth recommended and don't feel bad about pausing and looking back over things to make sure your aren't missing something (Pauses give the witness an opportunity to take a sip and fill the silence with things, and gives the court reporter time to stretch her fingers)
- After every break, ask the witness who they talked to and what was said. Sometimes you are entitled to that information, sometimes not. But ask regardless.
- Ask at the end of the deposition if the witness didn't understand anything and whether she/he has any answers she/he wants to change, add to or retract from. The witness will probably say no. Get them on record saying that. Because then if they go back and change answers later, you can bring that out and try to get some mileage out of the change.
- Change the pacing of your questions. Don't get into a repeated pace and tone of asking questions. Speed up some, slow down, jump around the logical order. It keeps the witness off guard and increases the likelihood you will get answers you want.
- Take all your time. Don't rush through it.
- Always be courteous to the witness even if you have to fight with the attorney.

I could go on for hours about this, but I don't want to deluge you with tricks and pointers. But that should be enough for your first time.

By: ajr

ajr — Sun, 29 Jul 2007 06:24:57 -0800

The cite for the article noted by KRS is 24 No. 2 LITIG 8. Very good (and practical) stuff.