Ten Strategies for Deposition Success

Who doesn’t love a list article? Who can fail to appreciate a lifetime’s wisdom, curated and arranged on the page in (usually) 10 bite-sized, bullet-pointed nuggets? Who couldn’t use a breezy reminder on matters that must be minded? No one, that’s who. And while you might want help re-entering the working world after a long summer vacation, or tips to avoid sweating through your suit while walking from the parking lot to the courthouse, we know what you really need: smartly packaged advice on how to accomplish litigation objectives at your next deposition.

Boiled down even further, the essence of all the foregoing advice is the need for careful preparation prior to any deposition.

And so, without further ado, here is that curated, distilled, bullet-pointed wisdom, culled from our pages and the pages of litigation experts publishing on the Internet:

1. Decide on the purpose of the deposition. There can be many reasons for conducting a deposition: discovery, admissions, summary judgment support, or perpetuating testimony. Questions should serve whatever objective is desired. Define the witness’s importance to the case, identify the areas of inquiry, then select techniques that elicit favorable testimony.
2. Know the rules that govern the deposition. Federal practice caps oral examination at seven hours and limits each side to ten depositions absent leave. In Connecticut, depositions must occur within 30 miles of the witness’s residence. Local rules and individual judges’ standing orders add another layer. Counsel should be thoroughly versed on all of these rules before the deposition notice goes out.
3. Never accept the “usual stipulations” reflexively. Instead, ask what specific stipulations opposing counsel is proposing. Regardless of local custom, do not agree to the “usual stipulations” without careful thought, and consider whether the deposition needs detailed objections preserved.
4. Lock in witness testimony. At the beginning of the deposition, eliminate opportunities for the witness to offer contradictory testimony at a later date. Ask the witness: Do you understand you are under oath? Do you understand that nothing prevents you from testifying accurately? Will you tell me if you do not hear or understand a question, so I may assume any question you answer is one you understood? These questions make it more difficult to offer the most common trial excuses for contradictory testimony.
5. Carry a topic outline, not a script. Litigation experts warn against reliance on scripted questions. Instead, prepare an outline of the ground that needs to be covered. A simple list of topics and subtopics, ideally no more than one page, should suffice. Use the outline as a guide, cross off topics as they’re covered, and be prepared to add to the outline on the fly.
6. Frame questions from open to narrow. Open each area with a question that invites narrative. Follow with questions that pin the witness to specifics. Close by establishing that recollection is exhausted. That final step can help limit later attempts by the witness from expanding the story at trial.
7. Explore the witness’s preparation. Ask what the witness did to prepare and which documents they reviewed. Under Federal Rule of Evidence 612, an adverse party may be entitled to inspect writings used to refresh memory. When a writing was used before the deposition, however, disclosure is subject to the court’s determination that justice requires it. Be mindful that questions about a witness’s preparation may also raise privilege or work-product concerns.
8. Create a clear record for every exhibit. Mark all documents for identification (taking special care for remote depositions) and annex them to the transcript so no one disputes later which document supported which answer. Build the admissibility foundation through the witness. If the witness can provide a foundation, you have discovered a route to admission. If not, then you’ve identified a weakness while there is still time to remediate it.
9. Keep objections lean and instructions not to answer limited. In most jurisdictions, court rules permit an instruction not to answer only to preserve privilege, enforce a court limitation, or present a motion to terminate. And be sure to know how to respond when opposing counsel’s questioning crosses these lines. Some litigation experts warn that unnecessary objections create at least two distinct dangers: they train the witness to expect rescue from counsel, and they invite sanctions for improperly obstructing the deposition.
10. Prepare early when defending corporate representatives. A Rule 30(b)(6) notice triggers a two-part duty — designate someone knowledgeable and educate that person to give complete, binding answers. Preparation for that witness should begin as soon as the deposition topics arrive and may require interviews, document review, and mock sessions. Starting early gives counsel time to identify and address gaps in the designated witness’s knowledge before the deposition.

Boiled down even further, the essence of all the foregoing advice is the need for careful preparation prior to any deposition. The quote frequently attributed to renowned New York litigator Louis Nizer, author of My Life in Court, sums up the litigator’s North Star as well as any: “The most important qualification for an able trial lawyer is thorough preparation, hard work, and industry.”