If you’re preparing for your first deposition and you’ve come to this blog, then you’re in luck. I’m breaking my deposition tips list into two parts so we can really delve into the details. Stay tuned for Part 2 next week.
Watch a deposition. If you have the opportunity to watch live depositions with a more experienced partner in your firm, do it! Pay attention to everything the lawyer does. Do they use specific techniques or approaches that you could use in your deposition? Mimic them and you will do well (or at least no worse than the partner). If you don’t have the ability to watch live depositions before you take your first one, then watch some on YouTube. There are humorous depositions online, and while those are good for a laugh, I recommend you watch a serious one to pick up on the nuances of a well-strategized deposition. This deposition of Bill Gates is a good place to start.
Prepare an outline. Depositions, especially your first one, can be nerve-wracking. If you’re feeling anxious, prepare at least 5-10 questions ahead of time to get into the flow of the deposition. This will also help spur your thought process and get you into a “groove,” not letting your nerves get the best of you. These are some good questions to get started. All this said with preparing questions, don’t script the entire deposition. You need to be flexible in your questioning so you can form follow-up questions based on the witness’s answers. If you have a well-scripted start and a list of bullet points you want to cover, you’ve positioned yourself well to get through the deposition.
Prepare for objections. No matter how hard you try, it’s likely opposing counsel will realize you’re inexperienced taking depositions. They might try to take advantage of you and object in a manner that isn’t proper. First, if the lawyer makes speaking objections – objections that prompt the witness – then you have to be prepared to stop your questioning and confront the lawyer. You don’t need to be hostile or rude, but you have to be ready to say that the objections prompting the witness are improper. Say so on the record. Second, remember that regardless of the objection, (except for privilege) you are entitled to ask a question and receive an answer. So don’t let an objection throw you off. Re-ask your question and get your answer. If the opposing attorney instructs the witness not to answer then you can’t compel testimony right then, but unless there is an affirmative instruction not to answer by the defending lawyer, then you must get your answer to the question.
Organize your documents. Make sure you have every document you might need. Paperless depositions are ideal, but regardless of how you do it, make sure your documents are organized and ready so you have what you need when you need it.
My next set of tips will be out next week and will focus on keeping your cool, practicing your questioning, and using the right lingo. Until then, do you have tips and advice for attorneys preparing for their first deposition?