Here is a summary of my answer:
When defending a deposition, there are 5 things every new attorney should be thinking about:
The most important thing when defending a deposition is to have a well-prepared witness. It does not matter how well prepared you are if your witness melts down. If your witness is unprepared and has a bad day then you’re sunk. To prepare you need to:
- Do a mock practice with the deponent so they know what to expect.
- Depending on the type of deposition you should review the relevant facts, documents etc.
This does not mean you should coach the witness or tell him/her what to say. But you should make sure that the witness is properly oriented to the facts, particularly if the lawsuit covers events that happened years ago.
2. Practice Aikido
Aikido “is performed by blending with the motion of the attacker and redirecting the force of the attack rather than opposing it head-on.” Defending a deposition is a lot like practicing Aikido. If the deposing attorney gets bogged down in useless details then you should let them spin their wheels. Even if their questions are potentially objectionable don’t cut them off (and thereby redirect the line of questioning) if the topics they are covering do not hurt you.
3. Anticipate Objections
Make sure you listen closely to the testimony to be ready for objections. In most jurisdictions the only permissible objections are “form of the question” and privilege.
- “Form” is code for all kinds of objections. But in general if the question is improper, such as “are you still beating your wife” then you would object to the form of the question.
- Privilege is a bigger deal because if confidential information is revealed then the privilege is (arguably) lost.
4. Transcript Awareness!
Remember that the transcript is the result of the deposition. If it isn’t in the transcript (or video if it’s being recorded) then it didn’t happen. Make sure your statements are on the record and that they are clear. I made a video about transcript awareness if you’d like more details.
5. Protect Your Witness
Remember, defending a deposition often means you’re also defending the witness…Don’t let your witness get fatigued. They will tend to be too cooperative when they get tired and want to go home. Make sure they are well fed and hydrated. Also don’t let opposing counsel make the room too hot or cold or otherwise make the witness uncomfortable. Trust me, they will try it.