We can all benefit from a refresher course from time-to-time so we developed some simple but effective tips to help you conduct better depositions.
We sat down with Professor Gretchen Sween, a Legal Writing and Research professor at the University of Texas School of Law to get some fresh insight on depositions. Professor Sween has taken depositions in patent litigation and wrongful death cases, as well as numerous commercial cases and class action lawsuits.
Below are some simple tips and reminders to get the most out of your depositions.
Use Technology to Your Advantage. Using technology is a great way to stay organized. Do online research on the people you will be deposing ahead of time; you may find something interesting which you can bring up in your questioning to get the witness talking. But don’t let technology distract you and take your attention away from the witness; address the witness directly.
Help the Witness Feel Comfortable. Professor Sween emphasized the importance of making the witness feel at ease. Psychology plays an important role in this process, as witnesses who feel comfortable during the deposition are much more likely to be more engaged and open with their answers. Always maintain eye contact and make the questioning as conversational as possible. Remember that your goal is to get the witness to reveal as much as possible during the deposition, so you want to be sure there’s sufficient interaction and engagement to establish that rapport. Maintaining that rapport will also help you reduce nerves and remain calm. There’s nothing wrong with being nervous; however, maintaining a calm and professional demeanor will keep the witness feeling comfortable.
Switch Up the Order in Which You Reveal Documents. You don’t want the witness or opposing counsel to know where you’re going with your questioning, as it may lead the witness to start altering testimony or changing behavior. As the deposing attorney, you’re in charge of the story; it continues to change in response to how you reveal documents. Use that to your advantage! For example, you may want to change your questioning to lead the witness into a “trap”.
Don’t Fight With Opposing Counsel. Avoid confrontations with your opposing counsel. They may get upset or confrontational when you’re touching on something that goes against their case, but calmly push forward and continue with your questioning. Don’t let their hostility deter you!
Don’t Confuse the Witness. Be clear and concise with your questioning. Remember, you want the witness to feel comfortable and open up. Don’t confuse the witness with legal jargon. Additionally, take the time to clean up the witness’ statements if there was a misunderstanding or confusion on her part. Remember, the ultimate goal of every deposition is to get something to use at trial.
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