Depositions are crucial to the discovery process and can often make or break a case. They can also be very intimidating, not only for the deponent, but for the attorney -- particularly a new attorney who is still learning litigation skills. Having recently taken a few depositions myself, and consulted with one of the most experienced litigators at my firm, Bob McKirgan, I have a few tips to pass along – some fresh and some old – but all worth remembering.
Success always begins with preparation and depositions are no different. The first question, then, is how much time should be spent preparing? A lot of factors have to be considered: the importance of the deposition, the amount and issues at stake, and what the client is willing to pay. I generally follow the rule of "three" – for everyone one hour of deposition, I spend three hours preparing. But, whatever rule you adopt, make sure your client has a realistic expectation of the amount of time required to take a successful deposition so the client does not have sticker shock when your invoice arrives.
Make sure you know your "critical" documents that need to be admitted at trial and the objections that will be raised to those documents. This not only affects your strategy of who to depose, but what types of questions to ask when taking a deposition. A great deposition is one thing, but a great deposition based on inadmissible evidence means nothing.
Outlines are also a critical tool. A detailed outline, complete with specific questions, may be too extreme and prevent you from focusing on the deponent and following leads or hints that may detract from your outline. One of the keys to taking a good deposition is listening to the witness' answer. You need to be prepared to follow up, deviate from your outline, and go back to the outline after exhausting your follow up.
Make sure you have your exhibits organized and ready to go. Do not let minutes and momentum slip away while you search in frustration for exhibits. Have your exhibits organized in some fashion and have copies for yourself, the witness and your opposing counsel. Your working copy can be used to highlight key language and to note questions to ask regarding the exhibit. Cross reference your exhibits to your outline; it is painful to watch lawyers fumble and stumble looking for documents that they want to show the witness. If you have a good document, make sure you lay the groundwork first before using it in the deposition: "Mr. Jones, when you write a letter, you try to be honest and accurate, don't you?" "You would not put anything dishonest in a letter, would you?" The witness will either agree, in which case, he cannot wiggle out of what he said in the letter when later introduced; or he will disagree, which makes him look dishonest.
Finally, if your client is being deposed, take the time to meet and discuss the deposition. Some clients may feel they don't need preparation time if they are familiar with the deposition process, especially if you are a young associate and the client is experienced with litigation matters. But, do not succumb to complacency because that same client who days before said he or she did not need deposition preparation will be very upset with you if the deposition goes badly.
This column does not deal with privilege issues when preparing for a deposition, but they are lurking out there and should also be considered.
TAKING THE DEPOSITION
Generally, nerves are at an all-time high when depositions begin. Adequate preparation helps calm the nerves, but mentally prepare yourself for something to go wrong – it always does – so you don't lose your focus. Of course, if you forgot to schedule a court reporter, then the ability to focus won't mean much until the last-minute substitute arrives two hours late.
If you are taking the deposition, try not to be a jerk. Jerk lawyers do not score any points at a deposition. In fact, a deponent will often "ice-up" and give that type of lawyer very little information. By contrast, an attorney who is warm and welcoming will often get through to the deponent quickly and effectively.
Use open-ended questions to get the witness talking. Make a list of what the witness says on an issue; exhaust the witness' recollection; and then go back and drill down. For example, "Who was at the meeting?" List the people that the witness identifies. Exhaust recollection: "Was anyone else at the meeting?" "Have you now told me everyone who was at the meeting as best you can recall?" Circle back and drill down: "What did John Smith say at the meeting?" This technique is very effective in taking a good deposition.
Sometimes attorneys let their egos dictate the pace and direction of a deposition. Ever seen an attorney who won't back off a poorly worded question because they do not want to look bad? Or what about the attorney who is so excited about getting a needed admission that he or she keeps asking the same question in a different way? Neither approach is effective.
If you are defending the deposition, listen to the questions carefully. This is easy to do at the beginning of the deposition, when minds are fresh and engaged. But, after lunch and during the late afternoon hours, it is tempting to take a mental break and space a question. A good attorney will know the witness is most vulnerable at this time and will attack when least expected. If you find you have missed a question and the deponent is well on his or her way to giving an answer, don't hesitate to make a belated objection.
It goes without saying (maybe it doesn't) that reading e-mails on your BlackBerry or iPhone while trying to defend a deposition is a dangerous practice that can lead to sloppy errors.
AFTER THE DEPOSITION
No matter how well a deposition went, don't immediately call a client or partner and declare victory. The answer you think you heard during the deposition has a funny way of transforming into something completely different when a transcript is produced. Fortunately, the opposite happens sometimes, too – good admissions you did not hear during the deposition also have a magical way of showing up in the transcript.
What should you do if your client or witness completely messed up the deposition? The answer depends on the definition of "messed up." If it is a "we can fix this on your direct examination at trial" mess up, then there may be nothing to do at that point. If it is a "we just lost the case" mess up, you can (1) settle; or (2) settle. If the mess up was an honest error or the result of a misunderstood question, your deponent can revise the transcript before signing. Be aware the more changes that are made, the more fun your opponent will have questioning your witness or client about the changes at trial.
Finally, I like to employ another rule of "three" after a deposition. Rather than pat myself on the back after a good deposition and sulk for the next week about a bad deposition, I write down three good things I did and three things I need to improve. That keeps me focused on specific ways I can improve next time. I also recommend making a similar list about your opponent's strengths and weaknesses – although there are some great deposition CLEs across the country, experience is always the most effective teacher.