by Kevin McReynolds
Unlike other types of discovery, depositions give you direct access to your opponent’s information without vetting by counsel. Opposing counsel can object, but the witness has to answer your questions unless you’re asking for privileged information or you’ve crossed the line into harassment. Other issues could keep the answers from being admitted at trial, but the witness still has to answer.
Preparation is the great equalizer
In your first deposition opposing counsel will be more experienced than you. Period. Bridge this gap by outworking your opponent through methodical preparation.
Case chronology and lists of the legal elements and critical factual contentions – both for your case and your opponent’s. Undermining your opponent’s key contentions is just as important as proving your case.
Don’t overlook information your witnesses may have. Talking to your witnesses can help you notice new issues when preparing for a deposition. Use this information to focus on what this deponent can tell you and to evaluate the responses and adjust your questioning during the deposition.
Prepare with goals in mind
Don’t just ask deponents to recite what they rehearsed with their lawyers, design your deposition around your goals. In addition to finding helpful information, you can use depositions to undermine negative evidence and identify new resources by asking for hearsay or other witnesses/documents that relate to a given topic. And unlike trial, use depositions to ask questions when you may not like the answers. Find the evidence that supports your opponent’s critical contentions or undermines yours.
If deposing a decision-maker, consider using your last questions to test your arguments and enhance your settlement position. Lay out the evidence to show strength, emphasize how your opponent underestimated its exposure, or to shift blame to another party.
Prepare an outline
Your first instinct will be to write out lists of questions. Don’t do it.
If you write out questions, you take shallower depositions on what you think you know. You can’t get new information this way and it becomes easy to just go through the motions instead of actively listening and adjusting.
Outlines provide flexibility to adjust while maintaining an overall structure. Never underestimate people’s ability to give unexpected answers or provide you with new information that can change the dynamics and focus of the case. If that sounds far-fetched, read Paula Deen’s deposition.
Use T-Funnel questioning
Formulate your outline using a T-funnel format – open questions to begin a topic and then closed questions drilling into details. Close out each T-funnel by confirming the witness has told you everything. This basic technique ensures thoroughness and helps you lock in testimony so it doesn’t change at trial.
Use documents
Documents in discovery or that you find during research are a great resource. Build documents into your outline to get answers from a forgetful witness, encourage a helpful response or to cut to the chase. Documents also can help you undermine harmful responses or attack credibility, but save these techniques for the end of the deposition.
Practice
Find someone to play the witness and ask them to be as difficult as possible. This is how at least part of your deposition will go and you’re better off finding holes in your questions in advance and practicing techniques that force an evasive deponent to give you the information.
Kevin McReynolds is an Assistant Attorney General in Colorado’s criminal appellate division. Before this, he clerked for a federal trial judge and spent five years in private practice splitting his time between a national firm in Los Angeles and a small firm in Denver. Kevin moved to Denver after enduring years of poor access to skiing and subpar local breweries in Phoenix, San Antonio and Los Angeles. He married his college/law school girlfriend who stopped practicing law to become a novelist and raise their daughter Emmy (now 3). Contact him at kevin.mcreynolds@state.co.us.
