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One of my most popular posts among lawyers is “Be A Potted Plant: Sanctions For Deposition Coaching and Witness Conferences,” which talks about how to defend a deposition in federal court, or, rather, how a lawyer should not defend a deposition of their client by acting like a fool at the deposition and interposing speaking objections. Others, like Jordan Rushie and Alex Craigie, have their own thoughts. (See my comment to Craigie’s post — our views are not so different after all.)
I had intended on writing a post about the law of taking depositions in federal court, but I ran across an article by C. Malcolm Cochran, IV, of Richards, Layton & Finger, P.A., that was so good I felt it more prudent to simply link to the article, “But The Examination Still Proceeds: A Primer On Surviving the Difficult Deposition,” rather than re-treading the same material.
Instead, I’d like to address a different issue: how a lawyer prepares for the deposition. This post is aimed towards the novice plaintiff’s lawyer, though most of the advice is applicable to defense lawyers, too.
First, consider this critical point: The poetic phrasing is “the law is made on a lawyer’s desk,” but what this actually translates to is you putting your butt in your office chair and stretching your concentration and willpower to its limits. The busy lawyer must make time for serious thinking, not just in the abstract, but in preparing the details.
Second, go back and read my post, “How To Excel At the Basics As A Young Litigator.” Did you see the part about “turn every goddamn page?” Good. Do that with every page you have prior to the deposition. Do you know the law applicable to your case, whether in precedent, in prior rulings by the court in your case — like an opinion denying defendant’s motion to dismiss — or as contained within the jury instructions? Will your case involve an expert? Don’t just send them a pile of stuff towards the end of discovery; talk to them before the depositions and get their thoughts. Have you honed in on the potential danger created by the type of conduct the defendant was engaged in and what safety principles and safety rules you plan to prove the defendant violated? (Yes, these are the same principles espoused by Don Keenan and Rick Friedman. You should read their books.)
If you don’t know where you’re going before you start, you’ll never get there.
Now, let’s talk about taking depositions. Cochran’s article itself includes in a footnote the “many goals that can be pursued in a deposition,” such as:
These include, in addition to discovery,
- setting up impeachment,
- pinning down specific testimony necessary for a motion or to establish the elements of a claim,
- boxing witnesses in, or out, on specific matters,
- preservation of testimony for trial,
- assessment and settlement,
- and many others. It is generally agreed that different techniques (including, for example, the use of leading questions, or carefully structuring an examination to limit the testimony given) may be appropriate, depending on the purpose of the examination.
I agree with those goals, but, for purposes of representing plaintiffs, I would also recharacterize (i), (ii), and (v) as follows. Each deposition needs:
- to be useful and effective at trial in cross-examination;
- to help you prevail over summary judgment on as many of your causes of action as possible; and,
- to convince the decision-maker on the other side of the risk of taking the case to trial.
How do you accomplish those goals? Let’s go over some basics of taking a deposition. Here are my ten rules for depositions:
- Use plain, simple language. If you wouldn’t ask it in front of a jury, don’t ask it in a deposition unless you must.
- Know when you’re investigating facts versus when you’re pinning down a witness to a particular answer. If the former, know (and write down) generally what you’re looking for, so you know when to stop. If the latter, have the cross well scripted and be able to back up what you’re asserting with a specific reference to a specific part of a document or testimony. In A Few Good Men, what would Tom Cruise have done if Jack Nicholson had answered, “I’m giving you the truth”? Would Cruise have stomped his feet shouting, “nuh uh”?
- Recognize your cognitive advantage and use it. You frame the questions; you know the next questions. You can ask anything you want, in any order, and you can take as long as you want thinking about them before asking them. Think of how answers will unfold on the other side.
- Prepare a good outline. Your outline must be robust and resilient and be able to still be functional and useful and able to keep you in control even when testimony veers off into unexpected areas — where you generally should let it go. The more the witness talks, the better (usually).
- Don’t skimp on the basics of the case. There are dozens of “basics” that need to be covered in a party deposition, including their version of the events in question. Walk them through your Complaint. Walk them through any factual assertions made by their counsel in filing. Ask them if they are at all responsible for what happened. For example, if it’s a corporate designee, you need to ascertain how the witness was chosen, what they know of their own accord, and what they did to prepare.
- Listen carefully to your own questions as you ask them. Are they ambiguous? Do they really get at what you want? How would you dodge them if you were the witness?
- Listen really carefully to the witness’s answers. Did they answer the question? Do they seem like they’re leaving something out? Did they reveal any new information or potential weaknesses to you?
- Don’t get into a stupid bickering match with your opponent. Per Cochran’s article, quoting David Malone’s The Effective Deposition, if faced with obstructionist opposing counsel, “behave as if opposing counsel were dead and no longer involved in the deposition.”
- Don’t get into a stupid bickering match with the witness. Your questions will get sloppy and your transcript will be useless. Ever tried impeaching someone at trial with a 20-page bickering match?
- Don’t blindly rely on someone else’s “10 rules” or any other cookie-cutter advice. Use your professional judgment and plan accordingly. That is what you were hired to do.
Now, on to how we accomplish the goals of setting up impeachment, overcoming summary judgment, pinning down and boxing in witnesses, encouraging settlement, and creating a useful record for trial.
By doing everything mentioned above, if you were diligent in your preparation and you are diligent in your questioning, you’re already there.