Getting through your first deposition
By Kevin Deenihan
A deposition is likely the first or among the first truly adversarial
encounters a new attorney will face.
Even in motion practice, the other major early hurdle, the
judge will typically be there to regulate proceedings and formalize disagreements. What’s
more, depositions more than most legal proceedings are governed by norms of
behavior rather than procedure. Below are some tips to make the procedure a
little less intimidating:
Make an outline. An outline is divisive. Many attorneys advise
doing away with it for good reasons. It distracts from two important goals: a)
carefully listening to the deponent’s response and b) probing and asking
questions based on the deponent’s answer. Nonetheless, young attorneys should
prepare a thorough outline. An outline organizes the topics to discuss with the
deponent, allows time to reflect and prepare probing questions, allows an
attorney to anticipate areas of pushback and ensures that an attorney won’t simply
forget to go over a particular area. Good outlines come with cross-references
to deposition exhibits or cites to the record from other witnesses. Also, build
an outline from previous depositions. Most practice areas are mature. Then go
over it again to add questions that open up new avenues of discussion.
Find a natural progression of topics. Do yourself a favor –
begin the deposition with easy questions. Name, birthdate, current residence. The
hardest part of the first deposition is breaking the ice. Once a flow of
conversation gets going, it gets easier.
Know the worst-case scenario. Know exactly what opposing counsel
can and cannot do in a deposition. Say that an attorney blusters, issues
lengthy objections and is unpleasant and aggressive. The important thing to
remember is that when the objection is done, the witness is still required to
answer. The witness is only NOT required to answer if the opposing counsel formally
suspends the deposition to obtain a protective order or if privilege is
asserted. So as intimidating as objections can be, recognize that they cover
for an essential fact of a deposition – it is very difficult to prevent a deponent
from answering a question.
If objections are truly disruptive and aggressive, have the phone number
of the court clerk on hand. Be willing, as a last resort, to ask the court to
resolve the dispute. It is less important that a new attorney use it and more
important that you feel able to push back against out-of-bounds attorneys.
Avoid speaking objections. Clever attorneys use objections not
to intimidate necessarily, but to educate the witness on the correct answer.
For example: “Objection, he already testified that the light was green.”
Speaking objections are difficult to prevent, but there are several tactics.
Offer opposing counsel a running objection to the line of questions. Take a
break. Always make your own objections to speaking objections if they are
feeding the witness information. If the tactics are truly abusive, call the
Cases are sometimes lost at depositions – although hopefully not at
your first deposition. Practice beforehand with a mock witness, be ready for
difficult witnesses, and good luck.
Kevin E. Deenihan is an associate with the Rasmussen Law Firm LLP.
His practice involves toxic torts, California Environmental Quality Act
challenges, asbestos-related bankruptcy trusts, labor and employment matters
and business litigation.