Do what Steven Covey teaches and “Begin with the end in mind.”
The problem with most lawyers’ deposition preparation is that they don’t think backwards. They just think about the questions they want to ask and the topics they want to cover. But the best lawyers think about their pretrial briefs before they take depositions. Of course, this can be a bit of a chicken-and-the-egg problem because you may need to know the witness’s testimony to figure out what theory of the case you want to pursue and what arguments you’ll make in your motion briefs. In some cases the deposition really is a fact-finding mission because you don’t have very much information (but those situations should be rare).
In most cases you should have a pretty good idea of what’s going on in the case before you get to the depositions. In those cases you don’t necessarily have to brief your motions ahead of the depositions. But you should have a rough outline at least. And this is where you must “begin with the end in mind”…the outline shouldn’t be what you want to ask, but rather, what you want to get out of the witness. That way you know exactly what you need the witnesses to say to support your position.
So when you are preparing for a deposition you have to know where you want to end up. You’re setting up targets. So how do you find the targets?
1. Check the case law
You need to know what the relevant law is regarding your case. Sometimes very subtle differences in what is or is not said will affect how a rule is applied, or whether a judge decides the evidence is sufficient to get to a jury. For example, I litigated a defamation case in Georgia where the rule between slander and libel were different. Georgia was the only state in the country with the rule that a company could be held liable for written defamation - libel – under the typical legal standards. But for some reason there was a rule that said that corporations could not be held liable for slander unless the slanderous statement was “expressly authorized” by the officers of the corporation. It’s a bizarre rule and probably a pretty good example of bad facts make bad law. Either way, since it’s pretty rare for a corporation to expressly authorize its employees to slander someone we knew we had to prove libel to win our case. The problem was we had very little written statements that could be construed as libelous. Most of the defamation was slander. Then we found another Georgia case that held that a corporate employee reading from notes commits libel – not slander – because they are reading print aloud. So then we knew that if we can prove that their employees were reading from notes we could support our case. So we went into the depositions knowing we needed to get the other side’s witnesses to admit that they used notes and read from notes when they had their meetings. That was not a hard thing to get in the deposition once we knew we needed it. So we had a key goal for our depositions that we set. That one seemingly innocuous issue – reading from notes – saved us from losing at summary judgment.
2. Review the facts
Sometimes the issue is not necessarily tied to case law, but it involves a factual dispute. It could be the timing of events, it could be how documents were stored, or email retention policies. Whatever the issues, figure out how you need the facts to play out to maximize your position. For example, you may know that the timing of when notice of a contract termination was received is a critical element in the case. Of course, the other side knows this element is critical so you cannot get them to concede your version of the facts outright. But if you are able to construct an overall timeline that supports your version of events then you will be better off when trying to prove the key fact. Get the witness to concede other events in your timeline. Another example is a person complaining of improper sexual touching. You won't get the plaintiff to agree that the touching didn't happen. But if you think about your closing, which is that the plaintiff did not act the way most victims act after being assaulted, then during the deposition you can review events after the touching. Get the witness to agree that she did (or did not do) certain things.
3. Review prior filings
Review the briefs and other documents that have been filed before the deposition. Look for representations made by the opposing party that are crucial to their case that you can attack or find statements that they make that you can get their witnesses to contradict.
A few reasons: lots of times, the lawyers representing other sides haven’t consulted wth client, or the client just did a cursory review. Often there are untrue or incomplete things and if you know things they haven’t answered correctly, you can:
- Use that against them, ask them questions to put them on the defense and make them look bad
- Get them to contradict an assertion that they've made earlier in the litigation. You can use this to great advantage during oral argument or in your motions.