Preparing to Take a Deposition
In an earlier post, I described depositions generally. They are an opportunity for a lawyer to question a witness before trial. And while they are meant to be an informal event compared to examination at trial, they can be pivotal in a litigation. As a result, taking a deposition requires a lot of preparation and skill. The actual question asking is enough of a challenge for its own post, so this post will focus on preparing for the deposition day.
Why should you read this post about preparing to take depositions?
You’ve done a lot of document review and you’re excited to show off to a small group of people who barely care.
You’re camera shy but you want your voice to be on a video.
You read the post about defending depositions and you’ve been waiting over two years for this corresponding post.
Image credit: https://commons.wikimedia.org/wiki/File:Young_Man_in_a_Interview.jpg
Making a List of Goals
A deposition should not just be a free-for-all for the lawyer to pose whatever questions are on her mind. This approach will likely lead to disappointment, since the witness will probably not just confess to liability, and the testimony the lawyer gets may not provide any tangible benefit in the case.
Instead, a lawyer should make a list of goals. What admissions does the lawyer want? What positions does the lawyer want the deponent to commit to? What facts does the lawyer want to learn?
To make this list, the lawyer should look over the complaint and other pleadings to think about every disputed or legally relevant fact that the witness could comment on. And the lawyer should review each relevant document in the case (and the documents that have a connection to the witness) to see which could be clarified by the witness.
Once the lawyer has a list of goals, she should organize the list into categories and then draft questions to get the answers the lawyer wants.
Phrasing Questions the Right Way
Some lawyers think it is better to just write bullet points so that the questions they pose at deposition feel natural. I agree that lawyers need to think on their feet at a deposition and be responsive to what the witness says with follow up questions.
But I think a lawyer should write out a script with questions prepared word for word. This is because the goal of a deposition is a good transcript that will be studied. And to get a clean transcript, the lawyer needs to phrase the question so that it:
Does not get objected to
Is clear
Is not going to get explained away by the witness later on by saying the question was not precise enough to get the real answer
Efficiently gets the answer without wasting limited time
Exactly tracts the language the lawyer wants to use to compare the answer against some other answer or document in the case
This takes a lot of work. Good questions are often leading questions, where the lawyer writes out the exact answer they want and then add, “Is it true that” before it or the word “correct?" after it. And a good way to prepare these questions is to practice the deposition with another lawyer who pretends to be an obstinate witness who fights every question, forcing the lawyer to phrase the question in an unobjectionable way. This process is hard and not fun for the lawyer, but effective.
Authenticating Documents
One major goal of a deposition is to confirm that some documents are what they say they are so that it will be easy to introduce them as evidence at a trial. The lawyer should make a list of all of the documents that a witness may be familiar with and ask the witness to confirm that they are authentic, even if there are no further questions about the document. This won’t produce a dramatic moment at the deposition (those are rare) but will be a huge help before trial and after trial.
Preparing Exhibits
Before the day of a deposition, the lawyer needs to identify the documents she intends to ask the witness about. These should include all of the documents she has questions about and the documents she wants the witness to authenticate. There may also be some “standby” exhibits that the lawyer is ready to show the witness if the need arises.
For a remote deposition, the lawyer should put all of the witnesses in a folder where she is able to access them easily. And she should make sure that they appear onscreen legibly. Some remote deposition vendors may ask for the exhibits in advance. The lawyer may also want to have versions of the exhibits herself on another device or screen that are marked up and that have the relevant portions highlighted so she can reference them quickly during the high pressure of a deposition.
For a live deposition, the lawyer should make folders for each exhibit and, in each folder, have at least four copies of each exhibit. The witness and her lawyer should each get a copy, the stenographer should get a copy (that becomes the official copy), and the lawyer should have a copy that may have markup on it. For large documents, it may be a waste of paper to print the whole thing out four times, but I have found that it’s better to waste paper than to have a huge fight at the deposition because the exhibit is incomplete. And for spreadsheets, it is usually an art to find a way to print the document in a way that is legible and complete.
Each exhibit, if possible, should be the version that has Bates numbers so the lawyer can reference the document in the transcript and there will be no ambiguity about what the witness is discussing.