Mentoring Committee: How to Take a Great Deposition

by Spilman Thomas & Battle, PLLC

Depositions are essential to developing your case because they allow you to assess the facts and witnesses in ways that you cannot achieve through other discovery tools. Many practitioners say that except for the ability to obtain documents, written discovery is unproductive and a waste of time and money in certain cases.  Assessing witness credibility and pinning down a witness's version of the events can only be achieved through asking him or her questions and having the opportunity to follow up with additional inquiries. You can depose a party or non-party, and opposing counsel cannot directly control the responses that the witness provides. In order to take an effective deposition, you should spend time preparing and develop familiarity with the relevant provisions of Rules 27 through 32 and Rule 45 of the Rules of Civil Procedure.
First, you need to determine whom you should depose. If you are working on a case with a more senior colleague, that decision may be made for you. However, if you must decide on your own whose deposition to take, you should keep in mind that the opposing party should always be deposed in order to tie down the detailed facts and disputed events, as well as to assess their credibility. If the opposing party is a corporation or other business entity, you should depose the officers and employees directly involved in the events at issue. Next, with respect to non-parties, you should depose the key individuals whose testimony will either support or discredit your case. You can conduct some investigation through informal interviews consistent with the Rules of Professional Responsibility, but you should depose witnesses as needed and as justified by the dollars at stake. Finally, you should depose experts whose testimony you believe you require after reviewing information provided in the mandatory expert disclosures.
Next, you must decide when to take depositions, and the Rules provide great latitude for determining the timing. Although Rule 27 allows you to take depositions before a case is actually commenced, you generally will wait until the lawsuit is underway and discovery has begun. However, early depositions can be used to catch the opponent off guard and unprepared. The normal course is to wait for written discovery to be served and answered, which will provide you with the facts and documents necessary to prepare thoroughly for the complete questioning of the witness. In federal court and some state courts, the local rules or scheduling order may dictate when you can take depositions.
In order to schedule the deposition, you must send a notice to a party or a subpoena to a non-party. Given the hectic schedules of most people, you should allow several weeks' notice, and if the opposing party is represented, it is good practice to call opposing counsel to identify mutually agreeable dates. Simply noticing a deposition without contacting the other lawyers is viewed by some as a major affront.  Remember that if you are deposing an expert witness in federal court, you must have the expert's report before you can schedule the deposition. If you are deposing the representative of a company pursuant to Rule 30(b)(6) or your applicable state rule, you must describe with reasonable particularity the matters on which the representative will be examined.
On the other hand, if you receive a Rule 30(b)(6) notice, you should identify any overbroad or problematic deposition topics and take necessary steps to address them with your client and the likely witness or witnesses. Multiple individuals can be designated to testify on a list of topics, and they can become knowledgeable on a topic prior to the deposition. Because of the broad meaning of relevance during the discovery phase, you should focus objections to deposition topics based on burdensome requests, privilege issues, and time constraints and parameters. Nonetheless, opposing counsel is not entitled to a fishing expedition, and it is important to object to relevance where appropriate.
With respect to logistics, you will need to arrange for a suitable location for the deposition and for a court reporter to record the proceedings. A conference room in your law office or opposing counsel's office is generally the best location. If you wish to videotape the proceedings to be used at trial, you should ensure that your court reporter has the capability to film the deposition. If the deposition is outside your jurisdiction and you have to subpoena the witness, Rule 45 prescribes certain details about the location that you should consider.
Turning to how to actually prepare for the deposition, every lawyer will have his or her own style, but you should plan to spend time reviewing any documents or facts that have any bearing on how your witness is likely to testify. With respect to parties, be sure that you review every pleading, discovery response, and document filed or produced by the other side. Regarding non-parties and experts, review any reports, medical records, relevant standards or guidelines, manuals, or other documents that may guide your examination. Order the documents in a way that makes sense for your case (i.e., chronologically, by transaction, etc.), and make sufficient copies of the documents for opposing counsel and for the record.
Once you have compiled your documents, move into the outlining phase, which will vary based on the type of case you are handling and the relationship of the parties (i.e., adverse, friendly, etc.).  Resources that you used during law school trial advocacy class generally contain sample outlines that can get you started. To begin the deposition, you will probably want to obtain background information about the witness, his or her preparation for the deposition, documents and records he or she has produced, and information about the corporation (if deposing a company representative). Some attorneys prefer to start with a few difficult questions that cut to the core of the case before moving on to background information.
After your introduction, you will move through the relevant topics in a logical order. For example, if you are deposing a corporation in a breach of contract case, you will want to discuss the course of dealing preceding formation of the contract, negotiations related to the contract, the execution of the document, conduct of the parties following execution, the breach claimed, conduct following breach of the contract, and damages. If you are examining an expert, you will want to ask questions about the expert's engagement, how she analyzed data in the case, and details about her opinions and other reasonable opinions with respect to the data. During the deposition, you will want to introduce relevant documents at the appropriate time.
The opposing lawyer will likely object to some of your questions on the basis of form or privilege. If you are only gathering facts, you can ignore objections based on form, but if you will use the transcript or video at trial, determine another way to ask the question. After the objection, instruct the witness, "Please answer the question." Obviously, where the objection is based on privilege, the witness likely will refuse to answer. Consider taking a break and discussing the issue with opposing counsel, or you may seek an order from the court compelling the witness to answer.
If you are defending a deposition, your primary task will involve preparing your witness for a deposition. Sometime close to the deposition date, schedule a time to meet with your client in order to discuss the case and what he or she can expect from opposing counsel. Discuss relevant documents, and remind the witness of important non-verbal considerations, particularly if the deposition will be videotaped. Provide advice on answering questions, including the need to understand what opposing counsel is asking, the importance of answering only the question asked, and the need to treat the deposition seriously. Prepare the witness for possible objections, and go over likely "tough questions."
You will develop your style by taking and defending depositions and, if you work in a law firm, by watching your mentors depose witnesses. Spend time preparing, and know that you will get better by taking more depositions. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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