Post Authored by Alexander I. Passo
“First times” in this profession can be nerve-wracking, especially if you have not had many opportunities to observe more experienced attorneys performing the task before being thrown into the fray. One of the most significant “firsts” is taking a deposition. This article provides some tips that I wish someone would have given me before I took my first deposition.
Step one: get everyone in the room. After deciding that you need to take a potential witness’ deposition, you’ll want to send a notice to the witness and counsel of record. This will be a placeholder notice, since you will need to coordinate a date and time agreeable to the witness and all counsel. Once those issues are completed, you’ll re-notice the deposition.
Confirm that all parties are still available a day or two before the deposition with opposing counsel. If all parties are available, and everyone plans on proceeding with the deposition, you should then confirm with your court reporting agency that you will need their services. Check with your partner whether this deposition should be videotaped or if it is an evidence deposition. If either scenario is the case, you need to include those details in your deposition notice.
This should go without saying, but you should be familiar with the case and the issues. You should know the claims, affirmative defenses, and categories of damages. Additionally, knowing which of the alleged facts support these items is critical. The purpose of the deposition is to confirm or attack the merits of these points if the case goes to trial.
Once you have these items down cold, sit down and prepare an outline for the deposition. When creating the outline, imagine how you would like to organize the flow of the deposition. I recommend breaking it up into sections that relate to a particular subject matter or, better yet, organizing the outline in chronological order of the critical events. Personally, I use exhibits heavily (usually, e-mails), and have those control the flow of the deposition. When doing so, I chronologically organize the e-mails.
If you are using exhibits, you’ll want to have additional copies, which you will give to the other counsel at the deposition, the witness, and yourself. Lastly, when creating your outline, you should not be writing out questions. Rather, the outline is a roadmap for the question you will ask the deponent. If you write out each question, you’ll rely on these questions too much and fail to actively listen or ask follow-up questions.
Opening a Deposition
Have the court reporter swear the witness in. Next, state, on the record, the caption of the case and where it is currently pending. You’ll then have the witness state their name and acknowledge that they are appearing to testify pursuant to the deposition notice.
You will then let the witness know about the general rules of the deposition. The witness should: A. Respond verbally to all questions; B. Allow you to finish your question before answering; C. Assume they understand the question if they answer a question; D. Know they can ask for a break, but must answer any pending questions first; and E: Understand their counsel may object to certain questions you ask; however, they must answer the question unless their counsel instructs them not to answer.
After running through these rules, you’ll want to establish that the witness is competent to testify by asking their name, date of birth, if they are under the influence of drugs or alcohol, and confirming they can competently testify. Once these general questions are finished, unless there are time constraints, I ask the following fundamental questions: 1) Their address and immediate family names; 2) Education History; 3) Work History; 4) Whether they have testified in a case before; 5) If they have been convicted of a crime involving dishonesty; 6) What they did to prepare for the deposition, and, if applicable, which documents they reviewed; and 7) If they have social media accounts.
There are various styles of taking depositions. Starting out, I would recommend a conversational approach. It builds rapport with the witness and makes the transcript easier to understand.
You should think of questioning as a funnel. Start by asking broad questions, especially ones that allow the deponent to provide a narrative response. Actively listen to that response. Then, ask narrower follow-up questions. When you’re finished with a particular subject, you’ll then close the loop by confirming there is nothing other information that is relevant to that subject matter.
To illustrate, if you were asking a manager why they terminated an employee:
Q: Did you terminate John Doe?
Q: When did you terminate him?
A: October 29, 2018.
Q: Why did you terminate him?
A: He showed up to work intoxicated on that day, had a habitual record of tardiness, and called-off frequently.
Q: Are those the only reasons you terminated him?
A: When he was here, he was also bad at this job.
Q: How so?
A: He didn’t follow directions and didn’t perform as fast as other employees.
Q: Are those all the reasons you terminated him?
Q: Just to confirm, the only reasons you terminated John Doe on October 29, 2018 because he came to work intoxicated that day, he was always late, called-off frequently, didn’t follow directions, and he did not perform as fast as other employees.
After hearing the above responses to my questions I would then ask follow-up and open-ended questions based on each of the answers.
If you’re introducing an exhibit, have the court reporter number it. Then, hand it to the witness. You’ll want to identify the exhibit on the record by its exhibit number and its Bates range. Afterward, either identify the exhibit’s identity for the record or have the witness do it. Notably, it is good practice to have the witness lay the foundation for the exhibit.
Don’t allow opposing counsel to affect your questioning. You can ask the witness to respond to the question if the opposing counsel objects (unless it is a claim of privilege and opposing counsel advises not to answer). Nevertheless, you should listen to opposing counsel’s objections and determine whether you want to rephrase your question. The most common objection you will hear is “form.” “Form” is a vague compound objection that the question itself is improper–and includes lack of foundation, asked and answered, and compound. If opposing counsel is behaving improperly, do not be afraid to call a partner and ask them how to proceed. Let them determine whether a telephone call to the judge is necessary.
After a deposition, I jot down my initial general impressions of how it went, including whether I believed the witness was credible or hostile, what was discovered, and if additional discovery is necessary due to the deposition. I personally do this because the information is fresh in my mind after the deposition. If I wait a day or two to do so, I will likely forget details that could be important to the case.
Consistently taking good depositions requires preparation and experience. After each deposition, you should review the transcript and look for ways to grow. If you put in the effort, you will both improve your skills and cast aside your fears. In fact, you may even immensely enjoy them.
About the Author:
Alex is a commercial trial attorney with the law firm of Latimer LeVay Fyock. Alex has lead counsel experience on a broad array of disputes, including closely-held shareholder/member disputes, breaches of contract, fraud, TROs and injunctions, and professional negligence actions. Alex also serves as outside general counsel for several startup and mid-market companies providing them legal advice when issues arise.