As a new attorney, taking your first deposition can be an exhilarating experience. Depositions are an essential part of the litigation process and an important opportunity to establish key facts and admissions that will be used to prove your case, whether at trial or in a dispositive motion. For the same reason they can be exhilarating, they can also be stressful. The following are some general tips and suggestions based on my own experience with depositions.
Get Familiar with the Process. One of the scariest aspects of taking my first deposition was my unfamiliarity with deposition procedure. The way I was best able to get comfortable with the process and procedure of a deposition was to sit in on a couple of them. Ask a senior associate, partner, or, if you’re starting out in your own practice, a law school colleague who graduated before you, if you can sit in on a deposition or two. Pay attention to opening admonitions (the ground rules for the deposition, including making sure that your witness understands he/she is under oath, that you are entitled to the witness’s best recollection and estimates, and that your witness should make sure to hear the entire question before responding), proper objections and how to respond to them (only objections based on relevance, form, and privilege are permissible), closing stipulations regarding the transcript (in the absence of a stipulation for how the transcript will be handled, CCP § 2025.520 governs what happens to the transcript after the deposition). Including your opening admonitions and proposed stipulation in your deposition outline can help ensure that you get them on the record.
Have an Outline, but Don’t Be Glued to It. In my experience, taking the time to prepare a good deposition outline is as much about familiarizing yourself with the exhibits and issues you’ll want to address at the deposition as it is about having something to refer to during the deposition. For the outline itself, I prefer to list out my topics in bullet point, rather than draft specific questions. This is because, often, the way I end up posing a question or addressing a topic is not how I originally envisioned. Further, if you’re busy reading your next question, you often miss the answer to the question you just asked, which can disrupt the flow and quality of your examination, and ultimately, your transcript. It’s very important to listen to the responses you receive so that you can adjust your line of questioning and ask the right follow-up questions.
Know Your Objectives. In connection with preparing a good outline, it’s important to know your objectives going into a deposition. For example, if the purpose of your deposition is to gather facts and admissions that you’ll use in a summary judgment motion, then you’ll want to try to elicit short, succinct, and punchy excerpts that you can easily cite in support of your motion. Conversely, if you’re deposing a third-party witness for purposes of fact-gathering and investigation, you’ll likely ask broader, more open-ended questions that guide the witness to respond with more details and information.
Additionally, it’s important to think about how you’ll use any inconsistencies, inaccuracies, or blatant lies you uncover during your examination. Some attorneys like to call these out in the moment to shake up their witnesses at deposition, while others prefer to hold onto these gems for impeachment purposes at trial. What you do in that situation should depend on your litigation goals and objectives. If you believe your case is one that will settle before trial, you may want to address a weakness in the opposing party’s case or impeach your witness during the deposition in order to build settlement leverage. Conversely, if you believe the case is not one that will settle before trial, you may prefer to save the weakness or inaccuracy for use at trial. Doing the latter, while it requires patience, is an effective way to impeach your witness and discredit your opponent in front of a jury. Knowing your objectives going into the deposition will allow you to make the most effective use of “gotcha” material.
Be in Control. One of the most insightful tips I received from a partner as a young associate was to be in control of the room during a deposition. I’ve taken depositions in which I was in control of the room, and I’ve certainly taken some where I was not. For example, opposing counsel may try to disrupt your concentration and muddy your transcript by making excessive and unwarranted objections. Don’t allow yourself to fall into that trap. Being in control means not engaging with opposing counsel on every objection. Unless opposing counsel is instructing your witness not to respond, you can simply ask your witness to proceed with his/her response. If you ever feel like the deposition has gotten away from you, take a short break and allow yourself to regroup.
Practice Makes Better. Depositions are difficult. Taking an effective deposition requires substantial preparation, but also intense focus and patience. They require you to know the facts of your case and relevant exhibits, to understand your objectives, and to be deliberate in your questioning while simultaneously digesting the responses you receive and making appropriate adjustments to your lines of questioning. As such, depositions can often be mentally taxing. It’s important to remember that you’re likely to make mistakes at first, and very few attorneys are excellent at taking depositions right off the bat. Be patient with yourself and remember that you’ll get better with practice.