Civil Litigation Discovery Legal Topics

How to Control a Deposition Without Being Controlling

The attorney taking the deposition usually controls the proceedings. But the best way to take advantage of this control is to hold onto it loosely.

The examining attorney controls all of the procedures around depositions, including hiring the reporter, preparing the deposition notice, and asking most, if not all, of the questions. In addition, the examiner sets the pace and tone of the deposition.

All of this control provides for inherent advantages, but to realize them the examiner needs to relax a bit. Try these techniques to be in control without being controlling:

  • Appear confident and professional, but open. Although an excessively casual demeanor may erode the solemnity of the proceedings, too much strictness may close off opportunities. Putting the witness at ease may garner more information than when his or her guard is up.
  • Allow rambling answers. Unlike at trial, welcome a witness’s rambling, nonresponsive answers. Your goal is to gather as much information as possible in the deposition—to be turned into damaging evidence at trial or to be used as a guide to prepare your defenses. To meet this goal, keep things relaxed, informal, and hospitable. You never know where the rambling will take you.

Note: Two exceptions to the friendly rambling deposition are (1) the witness who may not be available at trial, and whose specific, favorable testimony you want to preserve; and (2) an opposing party witness in a case that’s likely to settle. You may want to show the strength of your case and the harsh aspects of cross-examination to this witness to impress on her the weaknesses in her case and the prospective rigors of trial.

  • Allow for off-the-record statements. If the witness wants to go off the record to confide certain facts to you, permit it. If the “off-the-record” comments are critical, you can put them on the record later (unless you’ve promised that the off-the-record remarks will remain off the record). But even if they never become part of the record, they can lead you to something you didn’t know and wouldn’t otherwise have learned.
  • Don’t get so relaxed that you forget about the record. Make sure to suppress your ego and don’t trade ripostes with the witness. In a relaxed deposition, the witness may forget that every word spoken may be read back to a jury in a solemn courtroom setting. But you should never forget this.

For more practical advice on examining witnesses at deposition, check out CEB’s Effective Direct and Cross-Examination, chap 9 and California Civil Discovery Practice, chap 6.

Other CEBblog™ articles on taking depositions:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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