We all develop our own deposition style, but there are certain basic tools that every lawyer should have in his or her repertoire. Here are 10 examination techniques to consider adding to your tool belt before your next deposition.
- Outline areas of inquiry. For particularly important issues, write out the questions in advance. Understanding the objectives of the particular deposition and the material to be covered—and predicting how the deponent’s testimony might be used in motions, settlement discussions, and trial—helps focus the examination.
- Ask about ability to testify at the outset. For example, ask if the deponent has taken medication, feels ill or fatigued, or has any other problem, including recent alcohol or prescription or other drug use, that would affect the ability to recollect or to testify accurately. Ask whether the deponent speaks and understands English. These questions protect the record so that the deponent can’t later use these problems to explain away unfavorable testimony.
- Learn about the deponent. Research the deponent in publicly accessible sources and databases, as well as talking with the client and others who know the deponent and can share background information before the deposition.
- Use a productive tone. Consider the tone or style that might make the deposition most productive. For example, firmness may be appropriate with a witness who is likely to be hostile or recalcitrant. An accommodating manner may work well with a witness who will open up to that approach or with a friendly witness. Be ready to change your tone during the deposition if needed.
- Consider strategic order of examination. It’s often good to begin with general questions. If possible, ask questions that allow the deponent to “tell the story of what happened next.” This approach may demonstrate inconsistencies in the deponent’s testimony when you later return to specific areas, e.g., when asking the deponent about particular exhibits.
- Ask about document review and preparation. Ask whether the deponent reviewed any documents or discussed the case with anyone before the deposition. The response may lead to fruitful areas of discovery, especially if a nonparty deponent has reviewed the matter extensively with defending counsel, because no privilege protects such conversations from discovery.
- Never needlessly embarrass deponent. Not only is such conduct unethical (ABA Model Rules of Prof Cond 4.4), it’s unproductive and sanctionable. See CCP §2023.010(c). When potentially embarrassing questions are relevant to the issues in the case, however, you have an obligation to pursue them.
- Ensure that questions are answered. If the deponent doesn’t recall information with precision, you’re entitled to the deponent’s best recollection. The record should show your insistence on an answer in order to compel discovery and seek sanctions under CCP §2025.480.
- Never argue. Don’t argue with opposing counsel or the witness. Doing so wastes time, lengthens the transcript (increasing the deposition expense), may appear unprofessional or qualify as sanctionable conduct on the record, and could unnecessarily educate the opponent on the theory of the case, important issues, and your client’s general strategy.
- Don’t feel compelled to ask every possible question. Sometimes it’s better not to ask a key question at deposition, e.g., there may be an important document you prefer to save for impeachment at trial and deposition examination might prepare the witness to defuse that later impeachment effort. Balance the desire to surprise the witness at trial against the risk that you will be surprised by not knowing the witness’ testimony before trial.
Keep focused on the big picture of your client’s interests during every depo examination. Because most cases settle, establishing and maintaining a respectful relationship with the opposing side will increase the probability of good faith negotiations and advance your case objectives.
Want more details on each of these tools? Check out CEB’s California Civil Discovery Practice, chapter 6. And for step-by-step procedures from planning the deposition to taking it and using it at trial, turn to CEB’s Handling Depositions.
Related CEB blog posts:
- What To Expect When You’re Expecting a Deposition: A Checklist for Preparing the Deponent
- Questioning at Trial Versus at Depositions
- 5 Ways to Defeat Deposition Abuse
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