Legal AI can help litigators gain a real competitive advantage in depositions
In litigation, depositions are a crucial part of discovery. It’s an opportunity to elicit testimony from a witness—testimony the outcome of a case may hinge on, determining whether you’re settling a case or heading to trial.
Despite the fact that depositions are so critical, many attorneys don’t adequately prepare for them. Preparing for a deposition is often onerous and overwhelming for already time-poor attorneys, especially when faced with mountains of discovery to review prior to a deposition.
The good news is that legal AI—generative AI that facilitates the automation of legal work—is already helping litigators more efficiently and effectively prepare for depositions. Here are some general insights to help you prepare for depositions, with the added layer of how to use legal AI to help you not only save time but gain a competitive advantage.
1. Distill discovery to identify key issues
Before heading into a deposition, you should review all documents relevant to the matter and the particular deponent to understand the issues and facts of your case.
This can be daunting, requiring close review of pleadings, interrogatories, admissions, discovery (e.g., reports, investigations, employment and/or medical records), prior deposition transcripts, and other witness statements. But it’s also an extremely valuable exercise, one that’s necessary to ensure you’re not caught off guard during a deposition.
Legal AI like CoCounsel can significantly streamline this process, greatly reducing the time and effort needed to digest pertinent documents. CoCounsel’s Summarize skill uses the power of advanced machine learning technology to distill dense documents or sets of documents into succinct summaries. For long documents, such as voluminous transcripts, CoCounsel prepares reports that provide summaries for specific page ranges, with links to the pages included in each summary, for easy reference during the deposition.
AI allows you to much more quickly gain a firm grasp of the case, by identifying and understanding the key issues and relevant facts, which is critical to the next step in preparing for depositions.
2. Build a quality deposition outline, fast
A deposition outline can be an invaluable guide, ensuring you don’t forget to cover certain subjects and elicit testimony about pivotal issues in your case. For this reason, it’s important to review pleadings and discovery to determine the key issues in your case (step 1, above) before drafting an outline.
Once you know your issues, decide your goal for each issue. Potential goals might be questioning the witness’s knowledge or credibility to lessen the impact of the issue, or simply learning more from the witness regarding that issue. This is the point where you can tap into legal AI to help you craft a deposition outline.
CoCounsel’s Prepare for a Deposition skill is specifically designed to jumpstart deposition outline drafting. After you enter information about the deposition, CoCounsel produces a detailed list of topics and questions for your outline. When describing your deposition to CoCounsel, include the following information:
- Type of deposition (e.g., expert, fact witness, Rule 30(b)(6) representative, or Person Most Knowledgeable)
- Type of case and claims at issue (e.g., “This is an antitrust case involving price-fixing claims in the market for legal research software”)
- Whether the witness is adverse or any other relationship to the witness (e.g., “This is the lead witness for the opposing party” or “This is a third-party witness”)
- Anything else you’d like considered when generating deposition questions (example: “This witness is known to be untruthful,” or “This witness may have spoliated evidence”).
CoCounsel will generate a list of topics with questions for each topic, saving you from the dreaded “blank page syndrome” when drafting your outline. You can then refine and add to your topics, adding questions that will elicit useful information from the deponent. The result? A thorough outline in minutes, not hours.
3. Understand potential weaknesses in your case
When reviewing documents or preparing an outline prior to a deposition, many attorneys focus only on the testimony they want to elicit for their case. And while that is a fundamental part of deposition preparation, it’s just as important to consider the questions your adversary may ask.
Strategizing on opposing counsel’s perspective and anticipating their questions ensures you’re not caught off guard during a deposition. It also gives you a competitive advantage during the proceeding, which may help you better defend your case or secure crucial testimony for subsequent motion practice, trial, or settlement negotiations.
Legal AI can help you get a big-picture, objective view of the case and give you a significant advantage in devising a thorough deposition strategy. Attorneys using CoCounsel frequently rely on the Review Documents skill to help them understand and anticipate opposing counsel’s perspective and the weaknesses in their own case.
For example, many plaintiff-side employment attorneys feed deposition transcripts and other discovery into CoCounsel and then ask for examples of when their client was an incompetent or otherwise bad employee (that is, essentially asking what the defense attorney might focus on during the deposition). CoCounsel conducts a line-by-line review of the documents and answers the question, with page citations to the answers.
Review Documents helps attorneys home in on the negative aspects of their case, using them to guide their preparation and address these facts ahead of time, so they aren’t exposed during the deposition. AI can look objectively at the documents and assess what your adversary’s potential areas of focus are likely to be, giving you the opportunity to prepare a thoughtful counter strategy.
4. Know your local deposition rules
In addition to strategizing for opposing counsel’s potential questions, remember to consider possible objections and how to respond to them, as well as how to make your own appropriate objections.
“Appropriate” is the important word. Contrary to myriad depositions we’ve all seen in movies and TV shows like A Few Good Men or Suits, grounds for objections can be fairly narrow, and your role as an objector fairly limited.
To ensure you’re objecting on appropriate grounds—and can respond to opposing counsel’s objections—be sure to research the rules governing deposition conduct, such as permissible objections. And legal AI can help you find (and understand) those rules, fast.
Let’s say you’re taking a deposition in New York in a civil matter, where rules significantly limit grounds for objections during a deposition, except in limited circumstances. You can use CoCounsel’s Legal Research Memo to get not just the rules governing depositions in New York—CPLR 3115 and 22 NYCRR 221.1—but a memo explaining the nuances of the rules, such as proper procedures for making objections during a deposition, the types of objections that are permissible, and the manner in which they should be raised.
It’s also helpful to have rules governing objections with you at the deposition, in case you and opposing counsel disagree about grounds for objections. To make sure you know exactly what rules to reference, you can download a PDF of the rules from Legal Research Memo and use the Review Documents skill to ask questions about the rule. Review Documents will explain the rule and refer back to the page number in your PDF, so you can easily check the source.
By understanding how to properly object and respond to objections, you’ll be a more effective gatekeeper for your client (and their testimony), and signal to opposing counsel that you know how to defend against improper objections.
A deposition is a pivotal point in litigation, a significant opportunity to secure testimony that supports your case. And with legal AI in your corner, deposition preparation becomes much less burdensome. As a result, you can instead focus on developing strategy for your deposition, enhancing your skills as a litigator, and gaining a competitive edge that will serve you long after the case in question is over.