SPECIAL EDITION FOR NEW BAR MEMBERS

Your First Deposition

Your first deposition doesn't have to be your worst deposition. A little preparation will go a long way. Talk with lawyers experienced in the art of depositions. Study transcripts of effective depositions. Sit in on several depositions to observe both good and questionable techniques. Whatever methods you choose, do all you can to prepare for your first deposition.

WHERE
Some lawyers prefer the "home turf" of their own offices. Others prefer to conduct the deposition at the deponent's place of business, if permissible. This tactic, often used in commercial disputes, will minimize the possibility of a witness "inadvertently" leaving relevant documents at his office. If you are defending the deposition of a corporate representative, consider not having the deposition at your client's office.

If you are anticipating a particularly contentious deposition-for example, one where opposing counsel frequently instructs the witness not to answer-conduct the deposition at the courthouse to obtain the court's assistance as needed. If you believe that opposing counsel will be particularly obstreperous, consider videotaping the deposition (along with opposing counsel's behavior).

WHY
Often, discovery is the main reason for the deposition: learn everything there is to know about the opposing party's case. In such instances, construct broad, open-ended questions, for example, "Please tell me everything you know about the fire." Remember to "close the loop" after you have asked those questions. "Have you told me everything you know about the fire?" and similar questions will ensure that you have obtained complete responses.

The other common purpose for conducting a deposition is to obtain or preserve testimony for trial. This type, often called the de bene esse deposition, is normally taken of witnesses who cannot be compelled to testify at trial. Under these circumstances, the witness's deposition testimony may be used as substantive evidence.

WHO & WHAT
Another issue to consider is whether you will need to compel the presence of the witness and relevant documents at the deposition. In some jurisdictions, a deposition notice is all that is needed to compel a party's attendance at a deposition. In other jurisdictions or situations, particularly concerning nonparty witnesses, you may have to serve a subpoena or, if you need the witness to bring certain materials, a subpoena duces tecum, in order to secure his presence.

HOW
Some lawyers prefer to write out each of their questions beforehand. Other lawyers prefer to use an outline of key topics or subject areas. The latter approach gives the flexibility to go with the flow of the witness's answers rather than asking specific questions that may take the witness off in another direction before you have exhausted a particular area. Or, a hybrid approach may offer the best option: a general outline of topic areas interspersed with specific questions designed to elicit helpful admissions.

After each question, discipline yourself to really listen to the answer. Avoid getting so caught up in the pace of your perfectly designed questions that you miss critical information in an unexpected answer. At the conclusion of the deposition, offer the witness an opportunity to reaffirm that she understands that she has been under oath during the entire deposition. Give the witness a chance to change her answers if she didn't understand a question. This technique will help combat any claim at trial that the witness did not understand a particular question.

In sum, common sense, sufficient forethought, and adequate preparation will make your first deposition seem like your hundredth one.

FOR MORE INFO Video Depositions: What You Don't Know Can Hurt You. 1997. Video for CLE credits. Section of Litigation. V#97VDWV. To order, call 1-800-285-2221. Litigation Section members receive a discounted price.