The first thing to do in preparing for a deposition is to think about your goal—what are you trying to achieve with this particular deposition? Your goal should be reflected in your conduct toward the deponent and the scope of your questions. Here’s a look at how three common deposition goals should play out.
If your goal is to gather information from a witness you expect will be available at trial:
- Use a relaxed, informal, and hospitable examination to gather information. Be cordial to all attendees at the deposition and during recesses.
- Ask broad questions, e.g., to uncover weaknesses in your case, use “how” and “why” questions that don’t suggest answers. Allow nonresponsive, rambling, self-serving, or narrative answers, which may reveal more information than you are entitled to receive.
- Follow up with specific questions to pin down the witness on important points and insist on responsive answers so that, if testimony is read to a jury, they can easily follow the answers. Try to ascertain whether the deponent has revealed all he or she knows about the subject, e.g., end a line of questioning with “Is that all?” or “What else was said?”
If your goal is to preserve testimony from a potentially unavailable witness:
- Be friendly, but to preserve testimony, examine as if you’re at trial. For example, avoid questions that will be subject to objection at trial. If the witness is unavailable, the deposition transcript will be all you will have from that witness.
- Ask clear, precise questions to produce admissible responses. You may not want to follow up on some questions if you’re unsure of the deponent’s response, although you risk missing information that could help you evaluate the merits of your case.
- Summarize the deponent’s testimony and ask if your summary fairly represents the deponent’s responses, e.g., “You testified to x, y, and z—is that correct?” If you expect to use the deposition, instead of the witness’s appearance, at trial establish on the record the reasons for the deponent’s unavailability and your intention to introduce the deposition at trial.
If your goal is to promote settlement:
- If the deponent is a party that you think might settle, friendly but vigorous questioning may lead the opposing party and counsel to think that you’re a strong adversary who may prevail at trial.
- Develop information at the deposition to educate the opposing side about weaknesses in its case, particularly those in the deponent’s testimony.
Before you prepare for any deposition, spend some time thinking about your goal. Then approach that deposition with the goal in mind.
Get more of this type of practical guidance in CEB’s Handling Depositions (Action Guide). And for comprehensive coverage of all aspects of deposition practice, turn to CEB’s California Civil Discovery Practice, chap 5. CEB also has a program Preparing for and Taking a Deposition to teach both new and seasoned litigators how to prepare to depose a witness confidently and remain ethical and professional throughout the process.
Other CEBblog™ posts you may find useful:
- 5 Areas for Questioning an Expert at Deposition
- How to Handle Improper Coaching at Deposition
- Who May Attend a Deposition?
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