Depositions
counsel is so obstructionist and difficult to deal with that you sense everything is going to be a problem, then it is likely that it is time to grit your teeth, accept it, and steel yourself for the upcoming battles. Being congenial is only effective if the other side plays along. If they are going to push, it sometimes becomes necessary for you to push back and set the tone. Let them know that you are reasonable, but will not be a doormat during the litigation process.
3. Relaxation & Attention Tis section is based on two separate tips I have received
from two very experienced and talented trial lawyers. Te first is one that was given to me just prior to my first semester exams in law school:
"dominate the material and find a
way to relax during the test." It was great advice for law school exams, and it continued to serve me when I took the bar. Today, these words of wisdom continue to serve me as they are both pertinent and applicable to the practice of law, particularly to the process of taking depositions. Te second piece of advice given to me came from an attorney who could take medical expert witness depositions in his sleep. He told me that “the key to taking depositions -- as he sees it -- is to be inquisitive.” He then elaborated by stating that he would sometimes imagine he was having a conversation with the deponent over a cup of coffee. Tis allowed him to remain relaxed, while still engaging himself with the individual and the exchange of information as a whole. I have found both of these to be excellent suggestions. I
have also found that they are intimately related to one another. It is not always easy to force yourself to relax, especially before and during what you know to be a deposition that is extremely important for your case. As the second attorney advised me, acting as though you are simply having coffee and trying to get to know the witness, has helped me relax while simultaneously forcing me to pay careful attention to each response. Te added bonus of this approach is the conversational rhythm created early on which can lead the witness to relax a little and tend to be more forthcoming, even as the deposition progresses beyond the get-to-know- you phase. Te idea of taking a deposition with the mindset that you are going to find out everything also encourages follow-up questions, which are essential. I have found that sometimes the most revealing answers occur when I have gotten away from outline in an attempt to completely follow up on an answer given by a witness.
4. Conclusion I will always remember that first deposition I attended
for the seamlessness of the deposition itself, but also because it is – in my mind – the beginning of my career as a trial lawyer.
I will also always remember the first deposition I Trial Reporter / Winter 2011 13
took because it is the beginning of my understanding what it takes to be a trial lawyer. Obviously, there is much more than just taking and defending depositions involved in trial work. However, depositions form the backbone of any case, which is why learning how to take and defend them well is so important.
I hope that this basic framework provides new attorneys with enough information to get over the hump of those first few difficult depositions.
Biography William "Billy" Cannon is an associate in the Medical
Malpractice and Personal Injury Department at Shulman Rogers.
His practice focuses on medical malpractice,
wrongful death, and personal injury cases, including Federal Tort Claims. Mr. Cannon graduated from Loyola College in Maryland in 1998, obtained an M.F.A. in Poetry from the University of Maryland in 2002, and received his J.D. from the Catholic University's Columbus School of Law in 2008. Prior to receiving his law degree, Mr. Cannon taught English at Gonzaga College High School. He is admitted to practice law in the State of Maryland and the District of Columbia.
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