Taking a Deposition
In earlier posts, I described depositions generally and preparing to take a deposition. This post is about the actual act of showing up to the deposition and asking questions. It may come as a surprise, but I find this work to be harder and more exhausting than asking questions at trial. It may even be more challenging than being a witness. It is an essentially a one-person show that goes on for hours where the questioner has to stay focused and confident and also meet certain goals. And then at the end, there is no big celebration, it just ends.
Why should you read this post about taking depositions?
You want to hear some deposition war stories.
You want some tips on what to do when a witness is being difficult.
You’re deposing a witness right now and you’re bored and on your phone.
Image credit: https://en.wikipedia.org/wiki/Monologue#/media/File:Christopher_Walken_-_1984.jpg
Start With Ground Rules
I start depositions by setting ground rules and making sure the witness understands them. These rules include answering my questions out loud and telling me if she does not understand a question. This is an easy way to set the tone for the deposition and to let the witness know your expectations.
Follow Up
The deposition should start by following the script of questions that the lawyer prepared. But witnesses will frequently give unexpected answers. This is why I keep an eye on the transcript (I usually pay extra for the “Real Time” screen that lets me see the transcription of what was just said) and, if the answer leads to more questions or if the answer is unclear or unresponsive, I follow up until I get a clear answer.
Some witnesses will avoid giving a responsive answer. I don’t let them get away with that; I will ask the question another way in an effort to make it difficult to avoid answering directly. Sometimes I may ask the court reporter to repeat my question and then ask the witness to listen carefully to it; this may sometimes get the witness to answer directly. Other times I may ask in a polite tone, “Is the question unclear?” or “Is there something about the question you cannot answer?”
Following up requires listening carefully. Sometimes a witness has a good answer wrapped up on a longer, confusing answer. Follow up questions can help isolate the good part. For example, if a lawyer asks what did you have for breakfast on Monday, the witness may say, “I either had bacon or maybe an egg sandwich.” The follow up can be something like “Did you have bread?” If the answer is no, the lawyer can have the witness realize she probably didn’t have a sandwich and therefore had the bacon.
Sometimes after a lengthy colloquy, it is helpful to re-ask the original question (maybe rephrased because of the benefit of the colloquy) to get a clean question and answer that will be useful as an isolated quote later on.
Keep an Eye on the Clock
Some jurisdictions limit deposition length by default, and other depositions may be subject to certain time limits. Lawyers should keep an eye on the clock to make sure that they are on track to cover the subjects they want to cover before running out of time.
Don’t Be Bullied
Some witnesses and opposing counsel are jerks. It is a bad idea to get into a shouting match, but if anyone is rude, the lawyer taking the deposition should maintain control and composure. If the lawyer is concerned that bad behavior may take place at a deposition, she should consider having the deposition videotaped so there is a record of it. Otherwise, the lawyer should be prepared to shut down the deposition or to call the judge.
One thing that a defending lawyer may do is coach the witness or interpose lengthy objections that interfere with the examination. A lawyer should be strong enough to tell opposing counsel to stop and to threaten to end the deposition if they continue.
I had a deposition once where the defending lawyer was a bully. I felt terrible and I still have ill feelings toward him. On the one hand, the lawyer succeeded in interfering with my goal of getting usable answers in a transcript. But on the other, he eventually lost the case, and so I learned that bullies do not always win, which has helped me in subsequent depositions.
Some depositions devolve into immature fights about who is being unreasonable. Those are never productive and, when they occur, I just power through as politely as possible.
Marathon Not a Sprint
A deposition is not meant to be dramatic. Nor can it be; they go on for hours and are meant to be partially exploratory, where the lawyer is still learning information and trying out different theories. As a result, the lawyer should be ready for a long day.