The basics of taking a deposition

You've been asked by a partner at your firm to take the deposition of a witness. You've never taken a deposition. Law school was great, but it did not teach you "how" to be a lawyer - how to take a deposition. Don't freak out. I've been there and I'm here to help.

Purpose of the Deposition

First, WHO are you deposing? WHAT role do they play? Answers to these questions will dictate the type of questions you ask.

Once you know WHO you are deposing and their role, ask yourself WHY you are deposing this person and WHAT you hope to achieve. Are you trying to gather facts? Maybe you already know the details and you just need to pin the witness down so you can use their testimony as evidence for a dispositive motion. Maybe your goal is to try to discover who other witnesses might be. Perhaps you just want the opportunity to educate the witness or their lawyer. Maybe all of the above.

Depositions are expensive: hours preparing for the deposition, hours taking the deposition, cost of the court reporter, cost of the deposition transcript, the witness taking time off of work, summarizing the deposition for your client. Know your purpose.

Preparing for the Deposition

Now that you know who you are deposing and why, you've got to prepare for the deposition. Everyone prepares differently. Some people prepare full-blown outlines with every question they want to ask. Others prepare bullet points of topics they want to cover. There are dangers to both. You might miss something important if you just go with bullet points. You might focus too much on your written questions and not listen to the witness if you go with prepared questions.

There is no right or wrong way to prepare. I simply offer you the way I have come to prepare for every deposition I take as one suggestion. See what works best for you. I typically prepare a hybrid of the two.

To help me prepare my notes for a deposition, I pull the jury instructions and maybe perform brief research on the elements and defenses each of the parties need to prove their case. I do this to focus my questioning on what is important and to ensure I attempt to illicit facts I can use to support my client's position in the case. I try to speak with my expert and client to determine if there is any information that is of particular interest to them that I should be inquiring of the witness.

I also review the file to determine what facts I know and what facts I need. Are there witnesses identified in the file that I want more learn more about? Are there documents referenced that I want to obtain? Reviewing the file is also important for identifying documents I may want to use as exhibits during the deposition. I might want the witness to explain the content of the document. I might want to pin the witness down on something he said previously that is useful to my client's position.

If you are using exhibits at a deposition, I recommend:

Make copies of exhibits. You will definitely need your working copy and a copy for the witness that will be given to the Court Reporter to attach to the deposition transcript. You might want to also consider making copies for other attorneys who might be present.

Keep the copies together, not in separate piles. This saves so much time during the deposition.

Put them in the order you plan to use them. This will save time. You will appear more experienced.

Do not simply have the witness read the exhibits. This is an amateur move. We can all read the exhibits. Have a purpose for the exhibit. Have the witness explain something in the exhibit, confirm their signature, expound upon the content. Determine whether they agree or disagree with the content and why. Anything except simply read the content, please.

Taking the Deposition

Now you are ready to take your deposition. You show up to the deposition. Where do you sit? Where does the witness sit? How do you start? How do you finish? These are all questions I had for my first deposition. Relax.

Sit in the appropriate seat. The Court Reporter will sit at the end of the table. You will notice that the Court Reporter is facing slightly toward where the witness will be sitting. You sit directly across from the witness, near the Court Reporter.

Get yourself organized. Put your outline, pad and pen on the table. Fire up your laptop. Put your exhibits on the table. Bring Post-its and paper clips and place them on the table. Label the Post-its with numbers to mark the exhibits. Now you are ready.

Swear in the witness. Once everyone is present and ready, ask the Court Reporter to swear in the witness.

Ask away. Some attorneys introduce themselves and go over the rules first. Other attorneys get straight to it. What you do depends on your comfort level and strategy. There is no right or wrong way. If you want the witness off guard immediately, start with questions first. If you want the witness comfortable, start with introductions and going over the rules.

Adjourn the deposition. You've finished asking your questions. How do you adjourn the deposition?

Under the Code of Civil Procedure you are typically only permitted one deposition of a witness. However, if the witness did not answer all of your questions or if the witness did not bring all of the documents you requested, you will not want to "close out" the deposition. Instead, you will want to reserve your right to re-depose the witness on these other matters.

In California, there is a typical stipulation that attorneys enter at the end of depositions. You should know what the stipulation is and understand it before ever agreeing to it. Essentially, under the Code of Civil Procedure, Court Reporters are supposed to maintain the original deposition transcript and make it available at their office for the witness to visit and review the transcript and make changes.

Tips, Trick, Techniques

The more depositions you take, the more comfortable you will become. Here are some tips, tricks and techniques I've learned:

Manner and tone. Some attorneys are aggressive. Some are friendly. There is a time and place for both styles, but I have found that the friendlier I am, the more information witnesses provide.

Marking exhibits. "I'm marking a document titled 'XXX' as Exhibit 1, and handing it to the witness. Please review what I've marked as Exhibit 1 and let me know when you're done."

Listen. Get your head out of your notes and listen. Look the witness in the eye. Listen to what they are telling you. If you don't, you will miss the most important information they are providing you either verbally or with their body language.

Follow up. Ask who, what, when, where, why and how. Every answer a witness provides can be followed up with these simple questions.

Summarize. Every five or so questions, summarize the witness' testimony and get the witness to agree. The idea is to pin the witness down with the facts you want in a succinct way so you can use the testimony later.

Control. This is your deposition. Don't let the other side rush you, intimidate you, or direct the deposition.

Make a record. The Court Reporter is only transcribing what is being said during the deposition. She is not transcribing tone or gestures. It is your job to make a record of what is happening. If the witness nods yes, you need to ask them to verbally say, "yes." If the witness gestures to her body to show you where she was hurt, you need to say, "let the record reflect that the witness is pointing to her right index finger." If the other attorney is yelling at you, the same.

Handling objections. Don't let objections throw you off. Ask the witness if she understood the question. If not, ask her what she not understand. Rephrase if you need to. Don't engage the other side, if you can help it.

I hope the above proves to be helpful to you and that you feel more comfortable taking your first few depositions with confidence.