I have been exposed to depositions in a few different ways: (1) playing the role of a witness in the National Institute of Trial Advocacy’s (NITA) San Diego Deposition Skills program, (2) writing deposition summaries, and (3) observing depositions taken by senior attorneys.
Playing a Witness for the San Diego NITA Deposition Skills
I had only been in the legal field for barely a month when I first signed up to play the role of a witness in the NITA Deposition Skills program. My role was to play the Plaintiff in a sexual harassment case against her former boss. I wasn’t quite sure what a deposition was, but I dutifully read through the background information, made a detailed outline of important dates and events, and felt fully prepared to take on any question thrown at me.
But when I walked into a room with seven attorneys seated at a long conference table, all wearing their polished suits and staring at me, I immediately felt nervous. My palms began to sweat, and my throat narrowed. When I answered the first question, my voice barely rose to a whisper. I felt extremely exposed, even though I knew it was all an act. During my deposition, I forgot some of the facts, felt embarrassed, and went on the first break with flushed cheeks and shaking hands.
As the program went on and I became more used to the attorneys in the room, I began to relax and feel more comfortable with the process. Some attorneys were warmer and friendlier and much easier to connect with than others. Some didn’t seem to know the facts themselves, which made their questions confusing and answering them difficult. Some attorneys put on the pressure, leading me to feel angry and combative, looking to my defending “attorney” for help or some sort of intervention.
I hope to remember the feelings I had while being deposed when I become a practicing attorney. It is easy to forget that the legal world, especially the world of a deposition, is extremely foreign to people outside of it. There were numerous times I found myself looking to my “attorney,” wanting him or her to intervene and rescue me in my heated moments of discomfort, fear, or anger. Having only television as a reference, I often wanted to “plead the 5th” and not answer opposing counsel’s questions that were worded in a way to make me look at fault.
My biggest take away from playing a witness at NITA was realizing how much private information about a person’s life is entrusted to attorneys during a deposition. Having to answer such personal, difficult questions about my family, relationships, and life choices was challenging, and I know it would be even harder if the information were true about my real life.
I hope to draw on this experience when I prepare my own clients for deposition and do my best to put them at ease when they are feeling exposed or uncomfortable while giving their testimony.
Writing Deposition Summaries
As a legal assistant and law clerk, one of my tasks has been to summarize depositions taken by both novice and seasoned attorneys. While these are tedious and time-consuming tasks, they have provided an opportunity for me to “see” some extremely stellar and poorly taken depositions.
The biggest lessons I have learned are (1) always be prepared and (2) listen closely to the witness to consider alternative ways of asking a question to elicit a fuller response.
One of the depositions I summarized was over 500 pages long and lasted from 9:00 a.m. to 7:30 p.m. This was for a personal injury case. The taking attorney asked detailed questions that had already been responded to through written discovery. Many times, throughout the deposition he would ask the same basic informational questions and receive the same answers, clearly showing he had not read through the provided discovery responses nor had he been listening to the witness as she answered. The more senior attorney in the room even offered suggestions on how to ask the questions in order to get to the point and be more efficient with time, but the taking attorney reacted to the help with hostility and refused to change his technique. The witness was exhausted by the end, which led to shorter answers that provided less information. Ultimately, the taking attorney failed to uncover much of anything new beyond what had already been provided to him through the form and special interrogatory responses.
The most recent deposition summary I wrote involved attorneys questioning an employee regarding protocols and procedures. The witness continued to answer their questions with vague and seemingly curt answers. At first, my observation was that the witness was either evading the questions or simply did not understand them. But as the deposition continued, I started to see that the employee honestly did not know the answers to the questions and was not the type of worker who was going to come up with elaborate words or explanations to suggest what the attorneys may be getting at.
This realization brought me back to my time as a teacher, when I would be attempting to draw out a student’s contribution in a classroom discussion or an oral presentation. Sometimes students would not elaborate because the question was not clear from their perspective or given their background knowledge. In these moments, I would have to simultaneously simplify my questions and change the tone in which I asked them. I would have to gain their trust in order to encourage them to speak. This technique is something I have seen implemented by skilled attorneys in a more difficult deposition.
In the summary I mentioned above, one of the attorneys began asking questions that solidified what the employee did know, and in a way boosted the witness’s self-esteem. I could hear the mood shift. As the witness became more confident in himself, he started to elaborate and explain more, which ultimately led to the finding of more helpful information for all the parties involved.
I am always on the lookout for opportunities to observe skilled attorneys in depositions. What I have found they do well is put a witness (and opposing counsel) at ease to foster a smoother and more efficient fact-finding environment.
The skilled attorneys I have observed are kind, courteous, respectful, and humble. Aligned with what I have noted above, they are able to simplify their questions and ask them with a tone that encourages the witness to share and elaborate. They load the witness with confidence through willing affirmations, and seamlessly ask, in a humble and straightforward manner, the direct and more difficult questions. This gaining of the witness’s trust produces a more confident first response to the question. While a witness may go on to slightly change their answer in the deposition, that confident initial first response has been captured (usually on film) and provides a strong piece of evidence to build the rest of the case upon.
Looking Forward to the Future
I have been fortunate enough to observe and work with some of the top attorneys in San Diego early in my legal career. I hope to continue to learn from them and look forward to taking and defending my own depositions in the future. I hope I always remember the nerves I felt in my first mock deposition experience and do my best to prepare and support my client as they share some of the most personal moments of their lives with complete strangers. I also hope I listen to a witness and consider their background and understanding as I attempt to draw them out and elicit fuller responses. And lastly, I hope I can gain the respect and trust of witnesses and opposing counsel, even in the difficult and more contentious situations, with as much strength and skill as the attorneys I have observed and worked with.