An outline is an excellent tool for making sure you don’t overlook any important subjects during a deposition. But don’t let this tool become a trap: Be in the moment and be ready to venture outside of your outline.
Although most attorneys have an outline of the questions they wish to address during a deposition, attorneys vary considerably in how much they “map out” the deposition in advance. Remember that a deposition outline is a tool, not a script. Even though you’ve drafted an outline of the deposition, be ready for the likelihood that the deposition will deviate from the plan.
Follow these two contradictory dictates:
Stick to the plan until the facts are established. Probe the facts on which crucial claims and defenses are based. Don’t let evasive answers, overly general responses, or obstructionist conduct deter you from asking further questions to learn these facts. A common failing of beginning attorneys is to blandly accept each witness’s answer and go on to the next step in the outline. Don’t allow the witness to escape so easily; break down each answer into follow-up questions.
Keep an open mind and remain flexible. It’s crucial to listen to the deponent’s responses. During the deposition, facts not accounted for in the outline may emerge and need development. Pursue newly discovered facts without attempting to shape them unnaturally to a particular legal theory. By listening attentively and reflecting on the answers, you can often think of ways to modify a legal theory to fit the facts as discovered. After completing follow-up questions on a certain subject, return to the deposition outline and continue questioning as planned.
And what if your question elicits a wonderfully damaging admission from a witness and the witness has been “boxed in” sufficiently that he or she can’t dilute the admission at trial? No, don’t get up and do the happy dance! Actually, don’t show any reaction and resist the urge to continue that line of questioning to “nail it down.” Instead, simply move on to the next subject in your outline. Given another chance, the witness may appreciate the significance of the admission and make corrections. You don’t want to be one of those cautionary tales that judges tell about the attorney who was able to extract an admission from a deponent but, by further questioning on the subject at the deposition, diluted its impeachment value at trial.
Of course you want to be prepared with the questions you want to ask at a deposition, but an overly detailed outline may trap you within its structure. When witnesses blurt out important information unexpectedly, you need to be able to escape from your outline or risk losing the moment.
For more practical advice on taking and defending depositions, turn to CEB’s California Civil Discovery Practice, chapter 6. And get step-by-step procedures for all aspects of depositions, from planning to using them at trial, in CEB’s Handling Depositions.
© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.