Deposition Preparation: The Ten Essential Steps

If you’re a new associate or simply have not been involved in taking many depositions, you may find it useful to brush up on the basics long before “D-day” rolls around. To assist you in your preparation, here’s a ten-step checklist. Take some time to review it now. It could help you avoid many of the pitfalls that can spell doom for a deposition.

1. Depose or Not Depose?

First, determine if the deposition is even necessary. Strategic purposes for taking a deposition include having the deponent reveal previously unknown factual information, giving useful (i.e. damaging) admissions, or admitting to bias. A deposition is also warranted if the witness will not be available for trial or will testify as an expert for the opposing party. In other circumstances, a deposition may not be worth the time, cost and risk. Other discovery vehicles -- such as interrogatories, requests for production or requests for admissions — might suffice.

2. Review the How-To’s

If a deposition is warranted, you should review how to take one so you can create a polished transcript, rather than one full of sloppy exchanges. Even the most experienced attorney can forget fundamental deposition guidelines, such as having the deponent clarify ambiguous responses (e.g. “uh-huh” and “unh-unh”), asking simple, straightforward questions (while keeping in mind how the question will sound if read aloud to the jury), and remembering not to interrupt the deponent while he/she is answering.

Several valuable resources in this area are available from LexisNexis, including: 

• The Effective Deposition: Techniques and Strategies That Work (from NITA) 
• Tangible Evidence: How to Use Exhibits at Deposition and Trial (from NITA) 
• Deposition Practice Handbook; Civil Discovery and Depositions
• The Deposition Handbook; and Video Depositions (from the ABA)

3. Know the Rules

After reviewing how to take a deposition, you will want to read the rules that will govern it. Rules change. To avoid making an embarrassing and perhaps costly mistake, it pays to be up to date. The rules and statutes applicable to depositions in various jurisdictions can often be found online through LexisNexis at lexis.com.

Remember: if you are new to taking depositions and opposing counsel knows it, that attorney may try to be forceful, discourteous or even abusive of even basic deposition rules. Accordingly, you need to know how the relevant rules apply so you are prepared to respond.

For instance, a common tactic is for opposing counsel to try to “coach” the deponent through “speaking” objections (i.e. objections in which the attorney does more than simply state the basic objection). In general, such coaching is improper and repeated attempts to do it after your warnings may warrant suspending the deposition until the court can be contacted and an appropriate protective order secured. On the other hand, opposing counsel may instruct his client not to answer. Such an instruction is usually appropriate only to preserve a privilege, comply with evidentiary rulings set forth by the court for that particular lawsuit, and, in some circumstances, to prevent badgering of the deponent. If such an instruction is given and none of the aforementioned circumstances exist, it might be necessary to resort to the court for an appropriate ruling.

4. Research the Applicable Law

To ask the right questions during a deposition, you first need to become familiar with the law applicable to the case. Only after determining the legal elements of not only all the claims but also the potential defenses, can you have the deponent establish those elements or give testimony disproving them. Accordingly, you will want to review relevant case opinions (both reported and unpublished opinions) and applicable statutes, regulations, etc.

5. Identify the Facts of the Case

Similarly, knowing the facts of the case is essential. Facts can be gathered from a variety of sources, including pleadings (e.g. the Complaint, Answer, and other pleadings), documents received via discovery, as well as independent sources (e.g. online public records, news and private investigators). The more you know going into the deposition, the more you’ll learn during it.

6. Become an Expert

If the deponent is an expert who will testify as to a particular specialty (e.g. medical, technical), you need to learn about that specialty. First, educate yourself by reviewing explanatory materials, such as The Attorney’s Textbook of Medicine and/or various medical/trade journals online.

Then, consider retaining your own expert before deposing the opposing party’s expert, so you can use your own expert to help prepare for the deposition. Numerous expert directories exist online at LexisNexis at lexis.com (e.g. “Legal Expert Pages,” “Northwest Directory of Expert Witnesses & Consultants,” etc.).

If the case involves a particular product, you may find that reviewing patent applications online is a great way to find experts for particular types of products (e.g. air bags).

7. Know the Deponent

It also pays to perform a complete investigation of the deponent by searching public records online through LexisNexis at lexis.com. For example, you can uncover assets held by the deponent, access bankruptcy records, or search through filings to retrieve judgments and liens filed against the deponent. If the deponent is an “eyewitness,” searching driver’s license information online will reveal whether or not that deponent wears corrective lenses.

If the deponent is the opposing party’s expert, you may be able to obtain valuable information about that expert by reviewing relevant case summaries in verdict reports online at LexisNexis at lexis.com (e.g. “Combined Jury Verdicts and Settlements”). These case summaries contain a wealth of information, including the experts involved in the cases. In addition, you should retrieve journal articles written by the expert as well as search through news articles online to see whether anything has been reported about that expert.

8. Understand Opposing Counsel

You’ll also want to investigate the defending attorney prior to the deposition. Some attorneys are very passive during depositions whereas others are more aggressive. Knowing ahead of time how the defending attorney may act during the deposition will enable you to prepare a strategy to “handle” the defending attorney. After reviewing their listing in Martindale-Hubbell, you can utilize case opinions to determine whether the defending attorney has been the subject of discovery disputes, sanctions or motions to compel in previous cases. If you know what to expect, you’ll be better prepared to deal with it.

9. Prepare an Outline

As the deposing attorney, it is tempting to write out every question you intend to ask. Such an approach, however, can lead to an unsuccessful deposition. You don’t want to become a slave to the questions on the outline and, thereby, miss following up on potentially fruitful answers given by the deponent. The key is to maintain flexibility in questioning. Accordingly, you may want to consider merely listing in an outline format the topics or general areas you intend to cover - that way, you’ll be less likely to be distracted by any written questions and will be more likely to actually pay attention to the deponent’s answer. Of course, practicing (yes, practicing) beforehand can also help eliminate too much reliance on written questions.

That being said, reading a standard opening that covers the deposition basics can be a good way for you to get both yourself and the deponent into the flow of the deposition and eliminate any nervousness. Such an opening should include such matters as: introducing yourself, explaining the purpose and mechanics of the deposition, asking the deponent whether he/she is competent to testify, and asking the deponent whether he/she is under the influence of any medications that may affect his/her ability to understand or respond to the questions.

10. Take Care of the Little Things

All the preparation in the world will be worthless if you ignore the “little things” such as: (1) having all your documents in order so they can be easily retrieved for use during the deposition, (2) making sure that a competent court reporter has been retained and has all the necessary information (e.g. location, time, etc.), (3) reviewing/rehearsing difficult medical and/or technical terminology to be used during the deposition, and (4) reminding yourself that the basic rules of civility apply during depositions.