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Getting through your first deposition

By Kevin Deenihan

Kevin DeenihanA 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 judge.

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.