Lessons Learned – What NOT to do in your First Deposition

By: Vishal Shah

Whether the ink on your diploma is still wet or you’re a seasoned lawyer, any litigator knows that preparation is key to taking a successful deposition. Of the hundreds of articles that have been written to offer advice about how to prepare for a deposition, almost all focus on what I call “no brainers”: Know the law. Know the claims in the case. Know the facts that are needed to prove or disprove the claims. Be organized. Read the procedural rules. Know what “usual stipulations” means in your jurisdiction. While a lot of this advice is obvious to your deposition success, other tips are not so obvious. The following five tips are things I learned after my first deposition, but wish I knew before I ever asked my first question.

Do not script your questions. Some of the best deposition testimony is developed during moments of natural conversation. When you stick to scripted questions, it keeps the witness on guard of that “gotcha” question. Scripted questions also break up the natural flow of what a deposition should be – a conversation. Remember a natural conversation eases a witness’s anxiety and can lead to more honest testimony. To help develop and maintain this natural give-and-take, develop an outline of topics to help you address all the necessary points, rather than twenty-page list of scripted questions.

Do not be a lawyer-robot. Avoid “lawyer talk” just because a deposition is a formal proceeding. Witnesses, especially blue-collar ones, are incredibly wary of lawyers “who are out to get them.” Help lighten the atmosphere by being a human. Make small talk before the deposition starts with the court reporter or the witness. Don’t be afraid to personally connect with a witness on the record even if that connection lacks any relation to the case. Relatedly, avoid “twenty-five cent words.” Ask simple questions, like “Where did you go to school?” instead of “Where did you receive your education?” This, along with the small talk, will help to humanize you away from any preconceived notion of an “evil lawyer.” It will also cause witnesses to open up and potentially offer information that they otherwise would not.

Do not take notes. While this may be counterintuitive, taking extensive notes, especially like you did in law school, can actually hinder your deposition in two ways. First, it is difficult to take notes and look at the witness at the same time. Remember that one of the benefits of a deposition is the ability to actually observe the witness. You’re evaluating the witness’s credibility. Is the witness avoiding eye contact? Is the witness fidgeting with a pen on the table? Is the witness sweating? You risk missing any physical clues when you’re vigorously taking notes. Of course, I’m not suggesting to never jot down short notes, but resist the urge to be a lawyer and a court reporter. Besides, there’s always a court reporter transcribing the official record of the deposition. You don’t need to do his job and yours.

Second, not many attorneys can write and listen at the same time. One of the biggest complaints that older lawyers have about younger lawyers is that they fail to listen to the witness. Sometimes, witnesses say stupid things – you want to be listening when they do. Listening helps you make sure the witness actually answered your question, because often, witnesses, either on purpose or on accident, provide you with testimony that does not respond to your question. When faced with that situation, politely insist that the witness answer your question. After all, you asked the question for a reason. Listening also helps you to follow up on answers the witnesses provided.

Do not forget the purpose of your deposition. With the rarity that is a civil trial, most of your deposition testimony will be used to support your position in a motion that you will draft. Help you help yourself. For example, say the severity of the plaintiff’s physical condition is disputed. After the plaintiff has spent an hour explaining the laundry list of medical conditions she claims she has, remember to ask summary questions: Q: “Let me make sure I understand you. Since the accident, you claim your medical conditions are W, X, Y, and Z.” A: “Yes.” Q: “Is there any other medical condition that we have not talked about today that you claim is related to the accident.” A: “No.” Not only does this keep the record clean, but it also helps prevents the plaintiff from backtracking. Relatedly, remember that some background information will be needed when you’re crafting a story for the statement of facts for your motion. For example, if your case is based on the False Claims Act, don’t forget to ask what the False Claims Act is and what it seeks to accomplish, if appropriate.

Likewise, when listening and keeping the purpose of your deposition in mind, you can help produce your own soundbites by turning an inadmissible piece of testimony into an admissible one. For example, say an employee stated that she “probably” took safety precautions on the day the accident occurred, which benefits your case. Transform this speculation into “habit or routine” evidence by asking whether it was her regular practice of responding to that particular type of situation with that conduct. If you listen and follow up appropriately, you can turn this speculation into admissible evidence that supports your case.

Do not let opposing counsel control your deposition. When you’re taking a deposition, you must remember that you are in control and that you dictate how the deposition progresses. When you’re the youngest person in the room taking your first deposition, the intimidation factor can be overwhelming. Don’t be afraid to take your time and slowly progress through the topics that you intend to address. You may hear a sigh or two, but remember that to represent your client effectively, you need to ask the questions you prepared for your case. Take as much time as you need to ask the questions and ignore any pressure to unnecessarily speed up your questioning.

Aside from pace, the intimidation factor intensifies when opposing counsel is obstructive. Does opposing counsel repeatedly make “speaking” objections when you’ve agreed to only make objections to the form? Is opposing counsel improperly coaching the witness? When faced with this situation, don’t be a pushover, even if you’re dealing with lawyers who have been practicing longer than you’ve been alive. Don’t be afraid to call the judge, which, in most cases, should be a last resort. Moreover, if you know beforehand that opposing counsel has a tendency to be difficult, videotape the deposition. Videotaping the deposition can help control the obstructive lawyer because there’s a chance that the judge and jury may see his obstructive tendencies.

Along with preparation, these tips will hopefully ease the anxiety surrounding your first deposition. As you take more depositions, these tips will become second nature and you’ll be better each time around.

Originally published in the Trial Tactics Committee Newsletter of the Defense Research Institute, Volume 20, Issue 3, October 2014.