If you are a tennis fan then you know Rafael Nadal, a.k.a “Rafa”. For non-tennis fans, Rafa is one of the most dominant professional tennis players ever to play the sport. He is known as “The King of Clay” and has won 14 grand slam singles titles. Some players, including Andre Agassi, have called Rafa the best to ever play the sport. That’s all well and good, but what can you learn from this Spanish tennis player who has probably never even seen an American deposition? Well his tennis game has many characteristics that you can use in your depositions. I’ll review the top five.
1. He respects his opponents
Nadal respects his opponents. There are two parts to this respect, he treats them with respect in his interviews and he does not underestimate them. In a deposition you will be well-served with the same mentality. If you treat the deponent with distain or condescension then they will pick up on your attitude very quickly and become more combative and uncooperative. If you attempt to build rapport with the witness they it’s much more likely that they will feel more willing to share with you, which is exactly what you want. Even if your deponent is the opposing party, it’s hard to remain confrontational when the person with whom you are talking is unfailingly nice.
Also if you underestimate the witness’s intelligence or ability to verbally spar with you then you are likely to be in for a rude awakening. Do not assume that a witness will fall over and admit what you want. If you need to get a key admission be prepared to work for it. If the witness melts down then that’s great. But if you go in unprepared assuming you’ll have an easy time then you may have some explaining to do to your client later on. (More on how to get key testimony below.)
2. He’s a grinder
In tennis a grinder is someone who will patiently hit ball after ball over and over until their opponent hits a poor shot or misses. This playing style contrasts with an attacker who goes on the offensive as soon as possible on every point. Nadal is a grinder and it has served him very well on the tennis court because it wears down his opponents. They may win a point here or there, but over the course of a three or four hour match Nadal’s relentless play wears them down. You too can grind your way to some huge wins in a deposition. To grind effectively you need to be patient and not attempt to score big right off the bat. Instead take your time and realize that the most effective part of the deposition will be near the end when your witness is mentally exhausted. The tactic of wearing down the other side is well known by experienced negotiators, and you can use the same technique in your depositions.
If you plan to grind the witness down be careful because you do not want to leave critical parts of your deposition until the very end when your time is dwindling. Also remember that even when you have a tired witness it’s unlikely they will simply admit to everything. The win you get when the witness is fatigued won’t be an outright admission. Instead it might be getting the witness to agree with a well-phrased leading question, or it might be catching the witness on an inconsistency.
3. He ruthlessly attacks his opponent's weakness
One of the most famous tactics that Rafa employs is a continued attack of his opponent’s (relatively) weaker backhands. Most notably he uses this tactic every time against Roger Federer with consistent success. You should use the same approach. Cover the weaknesses in the opposing party’s case or the witness’s testimony early and often. This tactic will wear the witness down mentally (see grinding above), and it will set the tone when you cover potentially less favorable ground later on. Of course to do this effectively you must have enough stamina to remain focused six or seven hours into the deposition.
4. He uses modern technology
Rafa uses the latest racket and string technology, which allows him to hit with unparalleled topspin and to measure his performance. Much has been written about how new tennis technology has changed (and sped up) the game of tennis. Rafael Nadal’s game is one of the most effective adaptations of new technology.
You too can benefit from modern technology. Most depositions are time limited so you want to ensure that you are as efficient as possible during the deposition and that you do not waste precious time on administrative matters. Once of the most common ways lawyers burn time in depositions is that they spend way too much time searching for their document exhibits and then passing the exhibits around, waiting for them to be marked by the reporter, and then getting on the correct page. You should use modern technology to speed up this process. Paperless deposition software can eliminate the cumbersome task of handling paper exhibits. You can keep thousands of documents organized, distribute them in real time, mark them with a single click, and track every action of the witness.
5. He never gives up
Nadal never gives up. I recall one match where he was down triple match point while returning. (To non-tennis players that’s about as deep a hole as you can be in; one point away from losing.) Nadal won three points in a row, survived two more match points, and then proceeded to win the match.
In your depositions don’t give up if things aren't going well. It takes only a few seconds for you to get a statement, admission, or omission for you to turn a rather uninteresting deposition into a pure gem for summary judgment.
Learn from Champions
Depositions are much like tennis matches. It’s a one-on-one game where skill, endurance, experience, and technology all affect the outcome. If you prepare, plan, and equip yourself to prevail then you will find yourself dominating your depositions much the same way as Nadal dominates the game of tennis.