Since I'm out on depositions this week, depositions are on my mind. Particularly since I'm out with a fairly new associate who is getting one of her first opportunities to take deps. It's funny, because these days the new associates walk in thinking that taking depositions is easy. Well, it isn't. And they learn that very quickly when they are on the spot in the chair and having to ask the questions. What they don't realize is that the person sitting opposite them (the witness) does not want to answer their questions and has been prepped for hours not to answer their questions. They also don't quite get that this is all recorded on a transcript, so when you are talking about "this" and pointing to a document, that kind of questioning is going to make no sense once you read the transcript, because the transcript will not tell you what is going on. You have to know how to set up the record, and this takes practice. You also have to know how to phrase your questions in order to get a good "nugget" to use in a brief. All of this takes lots and lots of practice. Yes, there are people who naturally excel at it, but generally for most people, it takes a lot of practice.
In discussing all of this with my associate this evening, I decided to write this post. The first time you walk in to take a deposition it is frightening. You don't know what is okay to do or say, you don't want to look like an idiot, you don't want to ask questions you don't know the answers to (which is all of them), you are afraid to push, you are afraid to challenge, and you are just generally afraid. If you aren't afraid, you aren't human or you don't care. If you don't care, you shouldn't be there.
Here's my advice:
1. Make a list of goals of what you want to get out of the deposition. Depending on who the witness is, your goals will vary. Think about what part of your case you want to prove through this witness. Focus on the issues of your case on which your client bears the burden of proof. What can you get out of this witness? This list should be maybe 5 general bullet points. If you can't think of anything, then why are you deposing this person?
2. Make an outline. Depending on your style, your outline may be one page or may be 20 pages. An outline helps to remind you what topics you want to cover. The goal list also does this. As you get more experienced, you will likely need less of a detailed outline. If it is important to phrase questions in a certain way, think them through prior to the deposition and include those questions in your outline so you can read them directly. Outlines also help if you go blank for a minute and don't know where to go next. If you think this will never happen to you, you are crazy. It happens to everyone.
3. Remember that only your words are transcribed. So, when you are asking questions about a document, be sure to state on the record the page of the document, the location of the information that you are asking about, and any other information that makes it very clear what you are referring to when you ask the question. This is tedious, but necessary.
4. If you need to, take 20 seconds and think about your question before you ask. It's fine to take your time. People get scared of silence, but do not let silence bother you. You don't have to be firing question after question after question. At times you will get on such a roll, but at times you won't. Take your time and make sure your question is a good one. Don't trail off, and always make sure that you are asking a question.
5. It's okay to be the stupid one at a deposition. Don't assume, ask. The whole purpose of a deposition is to find out information. Don't take for granted the meanings of words that might make a difference to your case. Ask the witness what they mean when they use the word "X" or "Y"? Make sure you are all on the same page. Sometimes being an idiot works in your favor because the witness may open up more. If you don't understand any part of their answer, ask them to clarify..
6. Make friends with the court reporter. Seriously, don't be a jackass.
7. Ignore objections from opposing counsel. Don't let them get under your skin. Sometimes constant objections mean you are asking good questions. Other times it means you are asking really bad questions. Occasionally, they might give a "vague" or "compound" type of objection, and based on that you may realize that you should probably rephrase. Rephrase if you think they are right. Don't rephrase if you think they aren't right. Many attorneys will find some reason to object to every question you ask. Just learn to tune them out.
8. Ask whoever is the lead attorney on your case what you should order as far as transcripts. They are super expensive, and you may not need a rough or expedited. Make sure you ask before you order.
9. Don't get married to your outline. Allow yourself to flow along with how the testimony is going. If you see a branch that might lead somewhere, follow it for awhile. Ask questions. That's what you are there to do. You never know where you might end up.
10. On a related note to 9, listen carefully to the witness's answers. Listen to what they are telling you. I've seen attorneys who are clearly just reading through an outline of questions and they get and answer and move on to the next question without any follow up. Follow up. Ask for more information. Use the words the witness uses when you follow up. Listen. Sometimes witnesses surprise you by what they share.
Well, that's ten. I'll probably follow up with more. But honestly, taking a good deposition is such a skill. Some attorneys are good at it, some attorneys are really bad at it. Most of all, it takes a lot of practice.