Depositions make or break cases. Taking a deposition can be exhilarating when you're able to get past the witness's defenses and layers of preparation - or extremely frustrating if the witness is a skillful evader or if opposing counsel obstructs. In this post, we'll cover a few of our favorite techniques for taking depositions. In a later post, we'll explore techniques for defending them. Please add your own deposition "hacks" in the comments!
1. Avoid Upfront Boilerplates and Don't Reserve Objections
This hack is boring, but important. It's simple, too: do not put any stipulations in the record at the beginning of the deposition, if you're taking the deposition. If you stipulate that the other side can reserve objections, then they can come back to bite you later in the case. It's far better to force the other side to make objections at the time of the deposition so that you can cure them, then and there.
2. Ease the Witness into Admitting Competence and Recollection
Witnesses evade. They mostly do so by saying they don't remember what happened in the past. They might also claim not to understand a concept or process. Once a witness digs in with this strategy, it's very hard to dig them back out. The trick is to gently lead the witness into admitting their competence and memory before you start asking detailed questions about key events. Assume you were deposing a police officer and needed to get questions about what happened during an arrest.
- Mr. Jones, you're employed as an officer of the law?
- You've been an officer for 7 years?
- You were recently promoted?
- You've received outstanding performance evaluations each year?
- You believe it's important to do your job well?
- You care about the safety of others?
- Is it important to be observant in your work?
- So you pay attention to details?
- It's important to be precise when you write a report?
- You are always precise when you write a report?
I could go on, but hopefully this conveys a sense of the technique. In some instances, it's necessary to spend substantial time laying they foundation that will prevent the witness from escaping through poor recollection.
3. Save Your Mojo for the "Witching Hour"
If you start your deposition in the morning, then the so-called "witching hour" will be around 4pm. The witness will be exhausted and ready to leave. It's at this time that patience grows thin and lessons learned in preparation start to melt away. You don't want to be overly aggressive or rude at this time (or any other), but this is a particularly effective time to deploy a pre-prepared series of questions intended to force an important admission. You'll often be very surprised at the things witnesses say after 4pm, so save some of your best material for this time when it's most likely to work.
4. Silence Counsel Who Won't Stop Objecting
Earlier, I recommended forcing opposing counsel to make objections on the record so that you can cure them during the deposition, but sometimes you need to modify this strategy midway through a deposition. The defending attorney can engage in a number of disruptive behaviors during the deposition, and sometimes you'll need to take action.
For example, opposing counsel might make "speaking objections," which are nefarious because they're a way of coaching the witness on how to answer your questions. If the attorneys keeps saying things like "Objection, calls for speculation" or "Objection, compound question," you need to step in and stop it. It is unfair and many witnesses simply parrot the objection in their response. The first step is to state on the record that request a cessation of speaking objections and to point out they are forbidden by FRCP 30 (or state equivalent). Request non-speaking objections, such as "Objection, form."
Some defending lawyers will engage in a really annoying habit at this point: saying "Objection, form of the question" after every single question for the rest of the day. While some attorneys will put up with this nonsense, I put my foot down because the constantly-repeated objection (1) eats into the time for the depo, (2) makes a mess of the transcript, and (3) kills the flow of your questioning. Here, you have a few options. My personal preference is (1) try to persuade the attorney to stop the objections, (2) offer to let the attorney make a standing objection to form, and (3) threaten to contact the court if the behavior persists. If you offer a standing objection, then the attorney should stop because, at that point, there is no valid reason for making continued form objections.
5. Put It All in the Record
Crazy things happen at depositions. If you haven't already, go watch some of the famous example on YouTube of Joe Jamail nearly getting into a fist fight or Lil Wayne threatening a lawyer. If these things are caught on camera, great! That's what you want because, if something strange happens, you will probably need to show it to the court to get the appropriate relief. But things often happen outside the room where the deposition is happening. For example, an opposing lawyer became physically aggressive with me during a break in a deposition, but I was too flustered to describe what happened on the record. That was a mistake: always describe anything unusual that happened outside the room once you're back in front of the court reporter. This is your best antidote to the bullies and jerks whose idea of a litigation strategy is simply making your life miserable.
6. Film It, Yourself
You should be filming all of your depositions. There are numerous things you can do with the footage, including using it at trial, using it to get feedback from a focus group, video review of key moments, and including clips as exhibits to a motion. Audio transcript review tools can also be utilized with footage to stay informed with all vital information. Among lawyers I know, the consensus is that counsel can film the deposition as long as a court reporter is present. You don't need to hire a videographer for $1,000 per day. Just get an inexpensive camera and record to your computer.
7. Deploy Awkward Silences
One of the more effective questioning techniques is being silent. Most witnesses aren't prepared very well, and silence makes them feel uncomfortable, so they keep talking. Often, a rambling witness will say things that are very helpful to your case. So, when the timing is right, don't ask your next question: look at the witness like there's more to be said and let the silence get awkward.
Depositions aren't just about shoring up your theory of the case - they are also about learning. That's why a good questioning strategy usually involves a mix of open-ended questions and focused lines of cross examination. If you pay very close attention to the witness's answers, you'll often notice strange discrepancies or curious facts. Following up on these clues dropped along the way is critical to getting the truth from the witness. Don't be so focused on your next question that you miss on opportunity to learn something new about the case.
9. Use a Checklist
In an important deposition, you'll have dozens of items that need to be covered, but you probably won't want to follow a strict order of questions. As I mentioned above, you can and should deviate from your pre-established course when the witness drops a clue that opens up a new line of questioning. The best way of ensuring that you cover everything that needs to be covered while remaining flexible is using a checklist. Simply check off each item you've covered, and you can confirm that you've covered everything before the deposition ends.
10. Prepare Several Lines of Powerful Cross
In another post, we compiled 3 essential cross examination tips based on the book Cross Examination: Science and Techniques by Pozner & Dodd, which teaches you powerful methods for using opposing witnesses to prove your case. In the authors' view, juries are skeptical of direct testimony because they think witnesses will say anything to support their own case. The most effective strategy is having the opposing attorneys speak against their own interest and admit to the elements of your clients claims or defenses. The only reason someone would speak against their interest in this way is because they're confronted with the truth. Now there's not enough space to cover these techniques in this particular post, but we've sketched out some of the strategies in the other post. But you should really buy the book. It will change the way you practice law.
Before a deposition, you should prepare several lines of powerful cross examination. This takes creativity and serious diligence, but it's possible to win decisive victories if you deploy your cross effectively. In my practice, many of our cases settled after the first deposition, whether we took or defended it (more on effectively defending a deposition in a later post).
11. Don't Give Away Your Strategy
You don't want to telegraph your strategy to the witness. Many witnesses will be happy to lie to you. Others will omit details, embellish helpful facts, and otherwise distort the truth. If the witness knows where you're going with a question or a line of questioning, the witness will try to prevent you from achieving your aim. Be subtle and make sure the witness doesn't quite know where you're going at any time.
Often the defending attorney will ask questions after your main examination to clarify certain points or simply introduce additional evidence. If they do this, you have the right to cross examine the witness on the subjects covered by the defending attorney. Be sure to listen very carefully during the direct examination and responses. (Also be sure to object if the opposing attorney attempts to lead her own witness!) Sometimes it's possible to discredit the direct examination very effectively. I once had a witness admit that he wasn't truthful during re-direct. That's a powerful way to cap off a deposition.
We hope you've enjoyed this long-ish post. If you've made it this far, please share some of your own strategies in the comments.