At some point in most litigators’ careers they'll get to a point where they have to delegate taking depositions to less experienced attorneys. And at some point, every attorney who’s going to pursue a career in litigation will have to take their first deposition. I’m covering how to delegate and more specifically, tips for sending your fresh associates off to take a deposition on their own.
Get your associates in the saddle early
If you get the associate “in the saddle” early you will be happy you did. First, if you do it early then you can hand pick the deposition and delegate the associate to handle a less important deposition. They’re all important, but clearly there are some depositions that are less important than others.
Second, after the associate has taken a few depositions they will have a better understanding of the dynamic of litigation. Document reviews will be sharper because the associates will better understand when they encounter impeachable evidence.
How to delegate depositions to associates and minimizing risk
First, have the associate tag along and watch one or two depositions taken by senior attorneys. Unless the associate contributes in a meaningful way, you should not charge the client here. It’s not the client’s job to pay you to train your attorneys.
Second, make sure the associate has a good understanding of the case. Take time to work with them to discuss what you want to get out of the deposition and how you think you might elicit the needed testimony.
Third, have the associate do an outline and then role-play. The trick here is to make sure the associate doesn’t just read from their outline but actually reacts to what the witness says.
And fourth, (spoiler alert: shameless plug coming) have them read the other posts on our blog concerning deposition prep including improving your line of questioning, getting the witness to go "on-tilt", and preparing for your first deposition. I also have some posts covering practice tips and how to react when the witness says something that positively impacts your case.
Finally, I would argue that the most important thing to do when you send an associate to their first deposition is to not attend the deposition yourself. Like lots of life’s “firsts,” taking your first deposition can be quite stressful. Deposing a witness in front of your boss only makes the situation worse. I suggest going ahead with this option only if you feel you must supervise or oversee your associate’s first deposition (and if so, observe it from a different room).
If you employ live transcript technology, AgileLaw’s paperless deposition technology, and any standard web-based chat client, then you can monitor the entire deposition in real-time from a different room, or even a different country. You can also have a webcam set up if you want to see the witness. With this setup, if you have suggestions you can chat them to your associate. And if things really go south, you can always tell the associate to take a break and then call them.
There may be situations where it’s necessary to be in the room with the associate, but before you do so automatically, you should consider whether you may be better served either letting the associate handle it or at least monitoring the deposition from afar.
Cyclone Covey is an entrepreneur and active lawyer serving as General Counsel for four companies. Prior to joining his companies he practiced complex commercial construction litigation in Atlanta, Georgia with Griffin, Cochrane & Marshall, now a part of Sutherland.