Depositions
Depositions 101
William P. Cannon, III here are plenty of so-called
T depositions. “rules” for taking Tere are also plenty of “tips” and “suggestions” and even “guides.” Te sheer number
of practice aids out there is telling: there really isn’t any one formula that works the same for everyone. Te ultimate aim, as far as I can ascertain in the limited experience I’ve had, is to develop an individual style in a deposition that works for you – allowing you to obtain the information you need in a manner that fits with your personality. Rules don’t always work and tips, suggestions and guides aren’t always applicable. For these reasons, my goal in this article is to move away from rules, tips, suggestions and guides. Instead, I will stress some broader concepts that have been valuable to me as I have learned how to take and defend depositions over the last year and a half. Tose concepts are: preparation, cooperation, relaxation and attention.
But first, I begin with two short
anecdotes – the first deposition I ever attended and the first deposition I ever took. On my second day as a practicing attorney, I traveled with an experienced partner to the deposition of the tortfeasor in a personal injury case. Our client had sued the tortfeasor as well as her insurance company for failing to make an acceptable offer under the UM/UIM portion of the policy. Te partner explained all of this to me on the way to the deposition. I had no idea what it meant, but I was excited to be doing something on just my second day as an attorney! Te deposition was in a 7th
or 8th floor office about
a half an hour from ours. We picked up the client on the way there. As we walked in, the partner introduced me to the other attorneys and no one took a second look at me or suggested I was in the wrong place. I took my seat next to the partner, an attorney with approximately 30 years of litigation experience. Te attorney defending the deposition on behalf of the tortfeasor had approximately 40 years of experience, and the insurance company’s attorney was somewhere in between those two. As I did the math in my head, I suddenly had the feeling that I would learn something monumental about taking depositions – on just my second day of practice! I got settled in my seat, opened my legal pad and uncapped my pen. I listened closely and took (what I thought were) good notes. Te deposition, of course, went off without a hitch.
Te partner in my group asked all the right questions, got the answers he needed from the tortfeasor, and the insurance company's attorney did the same thing. In fact, they both did such a good job that I wasn't even really sure how they did it. Te only thing I think I ultimately learned from attending this deposition was where everyone was supposed to sit and that good lawyers make depositions look easy. I faltered miserably the first time I took a deposition.
I prepared meticulously, outlining the major and secondary issues in the case. In fact, I think I annoyed the experienced partner who was first chair on the case by discussing the issues in the case with him ad nauseam. I wrote out an exhaustive list of questions. I wrote out all of the follow up questions. I reviewed them. I revised them. I was ready. But when the court reporter said those magic words, I froze. I turned to my list of questions for help and started asking them. However, as I plowed through my list of questions at warp speed, I failed to actually listen to the answers. In my haste to get through the list, I failed to follow up on simple questions and left a wealth of information on the table. At a break, the first chair attorney pulled me aside and broke the news to me: I needed to retrace almost every step in order to make sure that we got the information we needed from the witness. I went back
Trial Reporter / Winter 2011 9
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