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Three Deposition Tips Opposing Counsel Doesn’t Want You To Know

by Cyclone Covey

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Deposition Tips

Deposition TipsYou almost never have the perfect case and the perfect client. They may exist in movies, but they don’t exist in real life. Instead you usually have a case with weak points. These weaknesses may be problems with the facts, an unsympathetic client, bad prior precedent, bad reputations or prior acts, or a combination of these issues. And often, when you walk in to defend a deposition, no matter how much you have prepared you are silently hoping that your witness will not torpedo your case.

Now let’s flip that scenario around and use the other side’s weaknesses to your advantage. Here are three deposition tips that your opposing counsel does not want you to know.

Deposition Tip #1. Explore the Document Production Minefield

Document production in most cases is a minefield. A party’s failure to produce all responsive documents can have dire consequences. But despite the risk, law firms often will assign to their client the responsibility of assembling the responsive documents. This delegation may occur to save the client money or because the lawyer handling the case does not want to wade through huge stacks of unorganized documents. The problem is that assigning the task to a client who is not a lawyer usually will result in the client not producing all the documents they should have. Some clients will intentionally withhold damaging documents. Others will innocently omit documents they think irrelevant. Either way this is a golden opportunity to make the other side miserable. Some specific avenues of questioning:

  • Cover the opposing party’s document production methods in detail. If the opponent is an entity then use part of your 30(b)(6) deposition to cover this issue.
  • Ask who assembled the documents, how they decided what to include and what to exclude, where they put their excluded documents, how many documents they started with, how the documents are stored, indexed, etc.
  • Ask them how long it took them to review their document set.
  • Ask them who reviewed the request for production of documents.
  • Look for inconsistencies. For example, a company that has hundreds of thousands or millions of documents cannot possibly have combed through them all in a couple of days unless they simply decided to reveal everything.
  • Also cover emails and email policies. Cover electronic documents, how and where they are stored.

In fifteen to twenty minutes you should have a pretty good idea if your witness and their side did not reveal everything they should have. If not then you have all kinds of new litigation weapons at your disposal, including motions to compel or for sanctions.

One note. When you use this deposition tip be prepared for “Work Product” or “Attorney Client” objections. Do your best to ask questions that circumvent these objections.

Deposition Tip #2. Use The Witness’s Friends and Family

Your witness has friends and family. If the witness is deeply involved in the case then there is a good chance that he or she has discussed the case with their friends or family. Sometimes the witness might even make a social post about the case on their personal social network pages. While it is unlikely that any witness will admit to making statements about the case to a friend, it is very likely that they in fact have done so. So here is what you do:

  • Ask about the witness’s routine. Where do they go after work, who do they spend time with on the weekend?
  • Get the identity of their friends. Then subpoena some of them. This is admittedly a lot of work and may not be justified based on the type of case or the cost. But it can be a jackpot of good admissions. If you get a friend or family member who knows little about the case firsthand but who turns out to be (or have been) a confidant of the witness then you can learn a lot.
  • Consider the bankrupt debtor who was driving a Ferrari two months before he declared bankruptcy. Do you wonder if his friends might be aware of expensive watches, trips to the Bahamas, or lockboxes? I bet your creditor client would love to know about this information.

Deposition Tip #3. Attack Your Opponent’s Weakness

Your opponent’s case has weaknesses. Ask about them. A Lot. If they have committed bad prior acts then cover them in detail.  If they took subsequent remedial measures to fix whatever problem they had then ask about those.  Don't worry about the admissibility of the testimony.  Make their weakness as bad as possible. See if it is worse than you suspected. The worst-case scenario for you is that the witness does a decent job defending his or her side of the case. You have very little to lose and a lot to gain. If nothing else you show the other side how bad their case really is, which can help in settlement discussions. Also it can help make the witness more willing to cooperate later in the deposition.  So hammer away at their bad facts.










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