Selected

Benefits



Pay Your 2008 Membership Dues Online

Superior Court Civil Register

Member Benefits

Calendar of Events

Know Your Judge

Judge Your Judge

Free Judicial Council Interactive Forms


 

New Identity Theft Protection
From LifeLock, Click here

Collection Services
by Sequoia Financial Services
for LACBA Members

Wireless Solutions
for Your Practice

Volume I, Number 2  ●  A Publication of the Los Angeles County Bar Association  ●  October, 2007


Your First Deposition

By having a plan and trusting your instincts, you can make your first deposition a success. As an associate, you have the opportunity to observe depositions at your firm. When your turn comes to take one, you may feel slightly nervous and in need of some organization. The steps that you take as you prepare for the deposition can ensure that you make your mark.


What is the theory of your case?
Review the operative pleadings, discovery and law and motion.
Create outline for deposition.
Call the client for information about the deponent.
Remember: this is YOUR deposition, not opposing counsel's.
Questions: general to the specific.
Dealing with ornery witnesses.
Handling testy opposing counsel.
Halting the Deposition.
You’ve taken the deposition – now what?

What is the theory of your case?
Prior to the deposition, review the theories of your client's case, break these theories down into elements, and determine where the existing facts fall. What do you need to support your case or undermine the other side's case? Often, the primary goal for a deposition is to nail down the witness's testimony for trial. However, some depositions serve a secondary purpose, such as support of a summary judgment motion. If so, write exactly what you want the witness to say, then formulate your questions. If you are deposing a nonparty, remember that you cannot propound written discovery. Remain cordial but persist in obtaining the information you need.


Review the operative pleadings, discovery and law and motion.
Review the operative pleadings and law and motion. There are various documents in your firm's files containing helpful information, including: the complaint, answer, law and motion matters, written discovery responses, and possibly investigative or background reports. Be familiar with these documents and how your opponent's facts and contentions fit your view of the case's issues. Identify documents from which you wish to question the witness and make copies for each attorney, the court reporter, and the witness.
On the day of the deposition, your focus should be on your outline, not on last-minute copying, so stay later the night before and finish preparing. Also, there are terms of art used in depositions. Check with other attorneys and obtain your firm's version of opening admonitions and closing stipulation.

Create outline for deposition.
After mapping out your basic plan about what information you need from the deponent, make a more detailed checklist of the testimony you intend to elicit. Every lawyer has his or her own system for preparing deposition questions. Some attorneys handwrite either the areas of testimony or the exact wording of key questions. Some outline a lengthy checklist on the computer. Others create an outline that fits on one sheet of paper. More experienced attorneys have the ability to map the questions in their minds.

Whatever method you use, your questions should not get in the way of the testimony. For example, your witness may volunteer information right away, but that information may concern the end of your outline. If you insist on asking questions in order of your outline, the witness may be less forthcoming. Stay on course, but be flexible enough to explore when appropriate.

Call the client for information about the deponent.
Call your client before the deposition. Since clients have a tendency to share information on a need-to-know basis, you will want to contact your client for his or her point of view. In discussing a witness's role in the case with your client, you may uncover additional issues in need of attention. At the very least, the client will appreciate the call.
Remember: this is YOUR deposition, not opposing counsel's.
Remember that this is your deposition, so take the time you need. Do not let more experienced attorneys bully you into dropping important lines of questioning. If you encounter comments such as "How is that relevant to this case?" consider the possibility that your questions are on target. Among the interfering comments that opposing counsel make, my favorite is "How long will this take? I have an appointment this afternoon that I don't want to miss." A professional response, such as "You had better make a phone call and tell them you'll be late," is appropriate. If you need to take a minute to gather your thoughts, let opposing counsel sit and grumble. This is your chance to get the information you need to serve your client.

A calm mind produces a better transcript. Do not lose your cool with either the deponent or opposing counsel, unless your mood change is strategic. If you are encountering an obstreperous witness, first try reason. You might offer a nonconfrontational comment such as, "I would also rather be at the beach than taking a deposition." If this is unsuccessful, you might try, "That was an interesting response, but to an entirely different question. The question I was asking was." Always try to coax your witness into the testimony you need before becoming forceful.

Trust your instincts. You have prepared a plan for the deposition and a checklist of questions. You can relax and concentrate on the present. If you are about to move to the next topic when you get a hunch to follow an offhand comment that the witness has made, you can do so. If you are wrong, you waste only a question or two, and before long you are following your checklist again. If you are right, you may uncover unexpectedly helpful testimony for your client.
 

Questions: general to the specific.
Follow the broad-specific-broad approach, which has a track record of success: "Tell me about that meeting on April 1"; "Who was there?" "Anything at all that you remember about that meeting that you haven't mentioned?" Make sure you set the stage for each event, leaving no ambiguity about who, what, when, and where: "Did you take the letter to the mailbox or did someone else?"

Alternate key questions with less important topics. The skillful attorney obtains important testimony before the witness realizes what has happened. During your preparation, you may have listed ideal testimony that you wish to elicit. Create alternative ways to ask the same question and ask the questions at different times. This serves two purposes:
1) anticipating the need to rephrase a question if needed, and
2) catching the deponent off guard and eliciting a response that differs from one made previously.
Dealing with ornery witnesses.
There are two kinds of unfriendly witnesses: one is hostile but provides testimony, and the other is nice but cannot recall any details. Never expect that you will change an unfriendly witness into a friendly one during the deposition. However, always be professional toward a deponent and counsel. This approach invites others to reciprocate. Introduce yourself to the deponent's attorney. Before the deposition, ask the witness about the trip to the deposition site or the weather. If you set a friendly tone, you may be able to keep the deponent's bad mood from getting worse.
With a hostile witness, adjust your checklist to follow what the witness wants to discuss. Let the witness testify on what he or she considers important. Note the areas in your checklist that are skipped and return to them later. If the deponent is not responding or is forgetful, turn to your exhibits. Guide the deponent through the details. If you have a letter the deponent wrote (do not forget to have deponents authenticate their signatures), ask about custom and practice: Where is it filed? Do you keep copies? Why did you write this letter? Who else received a copy? Use leading questions and require the deponent to say yes or no. A hostile deponent may choose to explain. The more he or she explains, the more of a chance you have for follow-up questions. If you do not have exhibits, be prepared with broad, general questions: Who have you spoken to? Who else would know about the event? If the deponent continues to say, "I don't remember" to the simplest of questions, there is not much more you can do. Adhere to your deposition plan, covering as many issues as possible that will appear at trial to lock in the testimony.
 
Handling testy opposing counsel.
Opposing counsel may attempt to distract you with small talk during the deposition, with friendly conversation during a break, or with more objections than necessary. If you encounter such obstacles, first try to ignore them. You may also consider taking opposing counsel outside and asking for cooperation. If all your attempts at obtaining cooperation fail, consider whether the deposition can be continued for a valid reason, such as the deponent's failure to produce responsive documents. As a last resort, you have the option to halt the deposition and request a referee, but this can become expensive.

Be aware of how the deponent's testimony compares with the information in the operative pleadings, especially the portions you have copied. When the testimony contradicts previous discovery responses, you may decide to remain silent and use that information as impeachment for trial. However, if your goal is to settle the case, you may demonstrate the holes in your opponent's case.
Halting the Deposition.
Before you halt the deposition, make sure the record reflects any offensive comments or conduct by opposing counsel that can be used as the basis for a motion before the court. For example, if opposing counsel employs gestures, make sure you identify them for the record: "Despite my numerous protests, opposing counsel continues to nod his head to coach his client yes or no to my questions." You may also choose to keep all your conversations with opposing counsel on the record.

If you anticipate that your questions may result in this type of confrontation, be prepared.  Discuss this issue with the partner on the case and the strategy to employ.  Print out a copy of Code of Civil Procedure Section 2025(m)(4) and attach it to your outline, having studied the requirements beforehand.  If the deposition reaches this point, you have two choices.  First, you could agree to ask non-objectionable questions and preserve on the record the objectionable questions for a later motion.  Second, if the circumstances warrant it, you can halt the deposition pursuant to this section, citing the code on the record and the reasons for doing so.  You may want to prepare this portion in writing, as well.
 
You’ve taken the deposition – now what?
Now that you have completed the deposition, prepare a summary as soon as possible.  The summary should include your general impressions of the witness, how they appeared at the deposition, a summary of their educational background and experience, highlights from the deposition testimony, and how the testimony affects the theories of the case.  Unless you prepare the summary within a few days, the details quickly leave your memory.

If the witness provided information that may be helpful in discovery, do not let the leads get cold. Send out subpoenas, additional written discovery, or additional deposition notices. Call your investigator and/or client.  If you wait, you may not reach potential witnesses before opposing counsel does.

Finally, keep the whole experience in perspective. There is an art to taking a good deposition, and practice makes perfect in all forms of art. Whatever techniques and steps you employ before, during and after a deposition, remember that you are at your most effective when you are yourself rather than an imitation of another lawyer’s style or personality.