The Advocate’s Journal: (Not-So Obvious) Thoughts on Taking a Deposition
By Michael Montgomery
As a young lawyer who has been practicing for almost six years, I have been lucky to have taken a number of depositions. I am by no means an expert, but I have learned some things, often the hard way, that make it easier to sit comfortably across the table from a deponent.
There are plenty of seminars, articles, courses, and resources for which you could pay good money to get educated on how to take a successful deposition. Instead of trying to cover the basics of taking a deposition, I’d like to provide some pointers that have helped me along the way.
- Have a plan- Not only should you know the facts that pertain to the particular deponent, but set a goal for what you intend to accomplish through the witness’s testimony. Also, think about strategic decisions for what you may or may not want to show the witness. For example, the witness has said “X” in one document and you have a document where the witness said “Y.” Do you save it for trial? For mediation? Or would it better to hear his explanation for the discrepancy in the deposition?
Along the same lines, remember the ultimate purpose of a deposition- to hear what the witness is going to say before he testifies at trial. In the back of my mind, I want to make sure that the questions I ask effectively “lock in” the deponent so that he cannot change his answers at trial without looking foolish. Once I am satisfied that the witness’s answer(s) to my question(s) are advantageous to my position- imagine having the deponent read it out loud to the jury during cross-examination- I move on. And then I stay away from the topic during the rest of the deposition, because I don’t want to give the witness a chance to say anything that changes the favorable testimony I have already obtained.
- Know your style- This is pretty obvious, but it took me some time to get comfortable with how I wanted to conduct a deposition. If you’re comfortable, the flow of information will come easier, regardless of what style you use. I tend not to “badger” witnesses, as I find that the proverbial honey is better at catching flies rather than vinegar. For me, witnesses talk more when I am nicer to them. On the other hand, I rarely scare a deponent into backing off testimony that I know to be inaccurate.
In a similar vein, don’t shy away from doing what you need to do to be prepared. My deposition outline for a particular witness is my security blanket. Even though I could probably take the deposition of a plaintiff in a slip-and-fall case just fine without an outline, I need one to keep me focused. However, the standard advice remains the same: listen to the witness and don’t just read your questions!
- Be prepared for the lie- In many of my cases, I know before the deposition that the witness is not going to tell the truth or has not in the past. The easiest example is a discrepancy between an allegation in the Complaint, discovery response, etc., and video footage of the incident. Sometimes, the deponent will say something you had not heard before that is contradicted by concrete evidence. I often struggle with how to handle these inconsistencies. Most often, I save my “gotcha!” moment for later and I let them go on and on about whatever topic they are (incorrectly) addressing.
This sort of goes back to planning, but remember the big picture. Often, my goal is to get my case ready for summary judgment and get certain admissions from the plaintiff that, unbeknownst to him, may damage his case. I try to avoid arguments with witnesses because typically the end result is the witness coming up with an excuse that weakens my position.
Here is an example: I have a plaintiff who fell and claimed he hurt his knee. He had surgery on the same knee a year and a half before the fall on my client’s premises. Six months after the fall at my client’s premises, he goes back to his knee doctor who does surgery to remove the hardware from the prior knee surgery. The plaintiff claims that the fall aggravated the prior knee surgery and led to the need for the second surgery. When I get his medical records before the deposition, I notice that he failed to make any complaints of knee pain to the EMT, at the emergency room, or to his family doctor on five follow-up visits for other injuries. In his deposition, all he talks about is how bad his knee was hurting immediately after the accident. Instead of confronting him with all of the medical records that don’t have single knee problem noted, I ask him questions that foreclose any excuses he may later make at trial. For example, I ask him (a) were you pleased with your doctors and felt that they listened to you?; (b) were you able to communicate or was there any reason why you wouldn’t have told your doctors that something was hurting?; and (c) what did the emergency room doctors say about your knee? (just to see how far he would go). To me, this is better than showing the plaintiff the records and then hearing excuses like, “well, I told the doctors and they must not have recorded it” or “I wouldn’t tell my family doctor about my knee pain because he’s not a specialist.”
- Have a good handle on the rules- Everyone talks about being familiar with Rule 30 and which objections are proper, but I think it’s more important to be able to use these rules to your advantage……and to be sure you avoid any traps. My first comment is an obvious one- read Rule 30(j) entitled “Conduct During Depositions.” Pay attention to the requirement under subsection (8) that requires deposing counsel to provide copies of documents shown to the witness to opposing counsel, and more importantly, if you want to avoid giving opposing counsel the opportunity to privately discuss the documents with the witness, you must provide or identify the documents at least two business days before the deposition.
The other rule to remember is Rule 30(j)(3). This sets forth the procedure if an objection and instruction not to answer has been made by opposing counsel. Too often, I see opposing counsel expressing exasperation that a question has been “asked and answered” or some other pseudo-objection that comes close to violating the prohibitions on objections that suggest an answer as set forth in Rule 30(j)(4). Instead of arguing with opposing counsel, simply ask your questions and force opposing counsel to instruct the witness not to answer. The burden then falls on opposing counsel under Rule 30(j)(3) to file a Motion for a Protective Order.
- Keep calm when dealing with the angry adversary (and don’t be the angry adversary) – As a young attorney, I am one of many who has a horror story from being stuck in a deposition with difficult opposing counsel. In my experience, opposing counsel try to interrupt the flow of your questioning rather than air a legitimate grievance. Don’t be baited into pointless arguments, but if you do, make sure it doesn’t happen in the presence of the witness.
And finally, I have learned that lawyers are like elephants in that they have great memories. I certainly remember every lawyer who has acted like a fool in a deposition that I have taken, and I even remember the ones my colleagues tell me about. I get that some people like conflict more than others, but I am a firm believer that there is a time and a place for conflict between lawyers. I just don’t think the conference room table during a deposition is the proper occasion.