Depositions
1. Preparation For me, preparation is the absolute key to a successful
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and covered each of my broad topics again and eventually asked the questions I should have asked when I had blanked at the outset of the deposition. Tis was, to put it mildly, a learning experience for me. After this deposition, I began to understand some of the things that a good attorney needs to do in order to effectively take a deposition. Why share the above stories? Well, I like to think they
are at least a little bit funny, but I also think they have some relevance to any article called “Depositions 101.” Te first story shows us that it is very easy to attend a deposition and think nothing of it because the attorneys involved are so experienced. It is easy to sit there, listen to the questions and answers and not realize or understand how much experience it has taken for the attorney to become so skilled at the craft of asking the questions that he/she sounds effortless. Conversely, it is just as easy, as a young attorney taking one of your first depositions, to prepare diligently and then, as the deposition gets underway, freeze, speed through a list of questions and call it a deposition without really obtaining any of the information that you need. In order to help prevent that, I will briefly discuss four
concepts -- preparation, cooperation, relaxation and attention -- that have helped me to become better at taking and defending depositions since my initial unsuccessful forays.
10 Trial Reporter / Winter 2011
deposition. While I will discuss other concepts that I find helpful, this is by far the most important.
preparation can even make up for lack of knowledge or expertise in other areas. First, preparation means knowing the basics -- the players, process and procedures.
I will
discuss each of those below, but if you have never attended a deposition, go and watch a few before you take or defend one. Experience with, and in, depositions is really the only way to acquire this knowledge of the basics. Te second part of preparation is what I call the "grunt work." I will discuss it in more detail below, too, but basically, this means the hard part of being a trial lawyer -- planning out case themes, confronting difficult issues or problems with your own case, reading depositions of other witnesses and experts in the case, as well as medical records and articles. Te good news about the "grunt work" is that you don't have to have a ton of deposition experience to work hard and prepare thoroughly and effectively for a deposition.
The Players Te basic players at a deposition are the witness, the
attorneys and the court reporter. One attorney will take the deposition by asking the witness questions. Te other attorney(s) will defend the deposition by listening to the questions and objecting when appropriate. Tis attorney will also sometimes ask follow up questions after the first attorney has taken the deposition to clarify and/or modify the witness' testimony. Te witness will answer the questions posed. Te court reporter will take down everything that is said, mark documents as exhibits and later produce a transcript of the proceeding. Of course, there can be others in attendance – parties are permitted to attend and sometimes (as in my deposition stories above) there will be more than one attorney attending for each side.
The Process Te basic process is simple enough. When everyone
is ready, the court reporter will swear in the witness. After the witness agrees to tell the truth, the attorney taking the deposition begins his/her questioning. Typically, an attorney taking a deposition will ask if the witness has been deposed before, and either for the first time for the witness, or as a reminder, that attorney sets some ground rules for the deposition. Tese ground rules are fairly basic -- the attorney will ask questions, the witness will answer them, the court reporter will take them down. It's important for the attorney and witness not to talk over each other for the sake of the
If done well,
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