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09-15-2009 | 01:55 PM
Top Ten Rules to Follow when Prepping for a Deposition
Making sure you are as prepared as possible will give you the confidence you need at deposition time. Here is a checklist to review as you begin the preparation process.
By David Dilenschneider
Several years ago, based on my experiences as a litigator, I put together a "Top 10" list of rules to follow when prepping for a deposition:
1. Depose or Not Depose?
First, determine whether the deposition is even necessary. Some strategic purposes for taking a deposition are to have the deponent reveal previously unknown factual information, give useful (i.e. damaging) admissions, or admit to bias. A deposition is also warranted if the witness will not be available for trial or if the witness will testify as an expert for the opposing party. In other circumstances, however, 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, be sure to 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.
3. Know the Rules
After reviewing how to take a deposition, read the rules that will govern it. Rules change, so in order to avoid making an embarrassing, and perhaps costly, mistake, it is always best to be up to date.
Keep in mind that if you are relatively inexperienced in taking depositions and opposing counsel knows it, that attorney may try to be forceful, discourteous or even abusive of even basic deposition rules during the deposition. Accordingly, you need to know how the relevant rules apply so you are prepared to respond. For instance, a common tactic employed by some attorneys is 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. Or 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
In order 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, 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), learn as much as you can 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 (e.g. Elsevier Science Journals).
Then, consider retaining your own expert before deposing the opposing party's, so you can use your own expert to help prepare for the deposition. Numerous expert directories exist online (e.g. JurisPro) and can be use to find an expert to retain on behalf of your client. Alternatively, 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, *** implants).
7. Know the Deponent
It oftentimes pays to perform a complete investigation of the deponent. For example, through searches of public records, you can uncover assets held by the deponent, access bankruptcy records, or find 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. Similarly, searching the deponent through online news databases may reveal damaging statements, conflicts and the like.
If the deponent is the opposing party’s expert, you may be able to obtain valuable information about that expert by searching various online databases. For instance, verdict reports contain a wealth of information (including the experts involved) about cases tried to completion or settled. You should also 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. For a more-comprehensive list of online resources to considering researching when it comes to experts, check out:
8. Understand Opposing Counsel
You will 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. Accordingly, after reviewing his/her listing in Martindale-Hubbell, utilize case opinions to determine whether the defending attorney has been the subject of discovery disputes, sanctions or motions to compel in previous cases. In addition, with deposition transcripts (esp. of experts) now online, you might be able to get a sense of how opposing counsel defends depositions. Does he/she object a lot, or make inappropriate interjections and the like? If so, you may choose to have the deposition videotaped in the hopes of better reigning in the attorney’s conduct. In the end, 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, consider merely listing – in an outline format – the topics or general areas you intend to cover. By employing this method, 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, date, 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.
David Dilenschneider is a Director of Client Relations (Litigation) for LexisNexis. In his role with LexisNexis, David consults with litigators across the country to discuss their challenges and needs.
David is a nationally-known speaker who has conducted over a thousand presentations to tens of thousands of attendees in cities all across the country – including presentations to the vast majority of the law firms in the NLJ 250. David has also presented at numerous programs conducted by the National Institute for Trial Advocacy and routinely serves as a speaker at prominent legal-education conferences (e.g. Mealey’s Teleconferences, the Litigation Technology Summit (New York City), the Legal Computing Summit (New York City), LegalWorks (San Francisco)), at bar association meetings (e.g. California, Colorado, New Mexico, Louisiana, etc.), and at law schools (e.g. Harvard, Stanford, Northwestern, etc.).
David has authored articles published in Expert Alert (a publication of the ABA Section of Litigation Expert Witness Committee), The Metropolitan Corporate Counsel, and the LA Daily Journal. He is also a co-author of a White Paper titled “Finding and Researching Experts and Their Testimony” (available at
, portions of which are also published in Expert Witnesses, the 2009 Annual Review of the ABA Section of Litigation’s Committee on Expert Witnesses).
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