Monday Practice Tip- Depositon Prep, Part 1

Hello all, and hope you had a great weekend!  We are returning to our original schedule starting today with a practice tip for young attorneys.  Over the next few posts, we will discuss some tips for helping you take good depositions.  We will reserve special tips for deposing doctors and expert witnesses for separate posts, but rather focus now on tips for deposing fact witnesses, including the opposing party.

1) The first thing you should ask yourself before drawing up your outline is . . .    “Can I lead this witness?”  There are many occasions at trial where, for one reason or another, you may have to read a deposition into evidence.  Accordingly, you should apprach a deposition with the mindset that these questions and answers may get read to the jury.  Attorneys with any level of experience know that at trial, favorable witnesses are examined with non-leading questions, while adverse witnesses are examined with leading questions.  Attorneys are the star when you are leading, while the witness is the star when you are not leading.  You want to be the star as often as possible!  So, when deposing a fact witness, think to yourself, is this someone that is favorable or adverse?  If adverse, lead the witness as much as possible!    On the flip side, as discussed in an earlier post, many attorneys are under the false impression that they can lead any witness on “cross-examination” in deposition.  This is false.  If you take a deposition of an adverse witness like say, the Plaintiff, and his attorney starts asking leading questions on “cross,” object to the form each and every time.  The attorney may get impatient and insist that they are permitted to lead the witness on “cross-exam,” but just keep objecting.  If you don’t object, you have waived those objections at trial. 

2) Properly define your goal.  When asked what the purpose of a deposition is, most newbies respond with something like, “to gather information.”  Incorrect!  At most, fact-gathering should consume about 25% of your deposition.  The real goal in a deposition is to put the case in a summary judgment posture, a partial summary judgment posture, or where not feasible you should at least be looking to obtain as many key admissions as possible.  If you go into a deposition, particularly that of an adverse party, without carefully thinking about the wording of your questions, a well-prepared witness will eat you alive with a barrage of “not that I can recall”‘s and “I don’t remember”‘s. 

We will be back next week with some additional tips! 


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