Deposition Tips for New(er) Lawyers
Photo from Jimi Hendrix Park in Seattle.
Taking depositions is one of the most critical things we do in preparing for trial. Many lawyers have different styles and approaches for taking depositions, but these are the critical Deposition 101 skills every new(er) lawyer should learn and use.
Outline
An outline serves three purposes. First, newer lawyers tend to freak out over how they should say things so much that they don’t focus on the purpose of the deposition—what do you want to know? An outline forces you to solidify your objectives. Second, it structures your deposition. Third and perhaps most importantly, it should make you less nervous because you don’t have to worry about forgetting this or that. And in general, preparation makes you less nervous.
But not too much…
You don’t want to write down every single question you want answered. Why? Because you won’t be listening to the witness. Follow-up questions are as important, if not more important, that anything.
In general, I have a handful of specific questions I need answers to, but my outline section for the “incident” is barely three lines. In part that’s because I usually like starting with open ended questions. What happened? And then I pick that apart.
Instead of specific questions, you should remember (or write down in your outline) concepts, like time, speed, location, and visibility.
Use exhibits
It can be daunting to you and the witness to try to describe a car crash with words alone. Use an exhibit—a photograph or aerial depiction. The visual makes it less abstract and easier to see what information gaps are missing. It’s much easier than three pages of specific questions in your outline!
Evasive witnesses
Witnesses are people, and people are different. They can also be defensive under a microscope. I generally use the moments before a deposition begins and the first 10 minutes or so to observe the witness and adapt my strategy accordingly. I always start very graciously (and almost always end that way as well). Most of the time you want the witness to be comfortable—as much as possible anyway.
Early on you should prepare in advance for how you will deal with “I don’t know” and “I can’t recall.” Sometimes “I don’t know” is a helpful answer. Sometimes you need to pin down a range estimate. Be prepared to ask the same question five different ways, over objections, if you need to.
Objections, and objectionable objections
Experienced lawyers know that the best way to rattle newer lawyers is to object, often with inappropriate speaking objections. Maintain your composure. Other than privilege, only form objections are allowed. This means things like vague or ambiguous. For example, if you ask a witness how fast he was going, that might be vague as to when in the series of events leading to a collision.
If you’ve asked a good question, ignore it and march forward. If you’re unclear on what the form objection is, demand that the lawyer explain the basis of the objection.
It usually only takes one slap down to get lawyers to stop inappropriate behavior. Don’t be afraid to tell lawyers to stop speaking objections or leading their witness.
More to come…