In his 2007 deposition in his suit against a reporter, Donald Trump encountered very prepared attorneys. As the Washington Post describes, they “confronted the mogul with his past statements—and with his company’s internal documents, which often showed those statements had been incorrect or invented.” Regardless of your politics or personal feelings, Trump’s deposition presents an excellent example of how to effectively cross-examine an adverse witness in a deposition.
If documents will be helpful in deposing a witness—as with the impeaching of Trump during his 2007 deposition—you’ll need to get and organize those documents as you prepare for the deposition.
Here are some tips to take from defense counsel in Trump’s deposition:
- Do your discovery before the depo. Although you can request documents in a notice of oral deposition (CCP §2025.220(a)(4)), it’s much better to demand inspection of the documents from a party under CCP §2031.010(a) well in advance of the deposition. This is especially important if the documents to be produced are so voluminous that they can’t adequately be reviewed at the time of the deposition.
- Organize your discovery to be ready for use in the depo. Organizing the documents for each line of questioning will give you a big advantage in the deposition. In Trump’s deposition, defense counsel (Mary Jo White, now the chair of the Securities and Exchange Commission, and Andrew Ceresney, now the SEC’s director of enforcement) had requested that Trump produce internal company documents and then reportedly “arrived at the deposition having already identified where Trump’s public statements hadn’t matched the private truth.”
- Master the documents. Just like the attorneys deposing Trump, you need to master the documents in your case. Know them backwards and forwards. Flexibility during the deposition is important, but you need to be able to return to key exhibits and to recognize when a witness’s response, e.g., to Exhibit 1, requires that certain questions be asked about Exhibit 100.
- Use the documents to impeach. Sometimes just knowing that the defense had the documentary evidence was enough for Trump to admit the truth, and other times they had to show him with the document. For example, when discussing the membership cost of one of his golf courses, Trump stated at his deposition that it was $300,000 (when pressed, he went down to “two-fifty…”). But in the end he had to admit it was $200,000, because defense counsel had the internal document with that figure.
- Bring hard copies. Although documents may be electronically stored, they must be marked as exhibits when used in a deposition, which usually requires hard copies. Note each document that may be useful when examining the deponent and copy and segregate each document to be used as a deposition exhibit. Make at least two copies of each exhibit, one to be marked by the court reporter and attached to the deposition transcript, and one for your use in asking questions. Although it’s not required, preparing additional copies for those attending the deposition reflects a cooperative attitude, allows the deposition to proceed more quickly, and shows that you’ve prepared for the deposition.
Learning from watching (or reading about) other experienced attorneys in action is a great way to improve your deposition skills. You can also gain insight from the expert advice in CEB’s California Civil Discovery Practice, chap 6 (on taking and defending oral depositions) and in CEB’s program Preparing for and Taking a Deposition, available On Demand.
Other CEBblog™ posts you may find useful:
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