Own Your Deposition and Get a Great Transcript
Whether you’re preparing for your first deposition or your 100th, there is no denying the importance of careful planning, artful communication, and unwavering focus.
If you are an experienced attorney with a slew of depositions under your belt, you know how valuable an accurate transcript can be to your case. Your court reporter is there to record the proceedings and it’s in your best interest to do your part to ensure an accurate record.
As a young attorney facing your first deposition, you may be filled with both excitement and dread. You will undoubtedly make mistakes and the transcript will show them. You will learn from your mistakes and, with practice, you’ll get better.
Whether you’re preparing for your first deposition or your 100th, there is no denying the importance of careful planning, artful communication, and unwavering focus. While there may be 50 ways to conduct a deposition, below are a few basics.
Gotta Make a Plan, Stan
Prior to scheduling a deposition, you should have a clear idea of what you hope to achieve. First and foremost, know the law. Have a thorough understanding of how the facts of the case relate to the law. Research discovery and know the rules of the court. Are there claims you want to prove or disprove? Are there statements that are inconsistent or documents that are questionable? Write down a list of the points you will need to address and solidify your case strategy.
Once you define the key points, put together a list of questions that will support each point. Inevitably, you will deviate from this list during the deposition, as the deponent’s answers may lead to other facts or questions. What you really want is a roadmap. That way, you can let the natural flow of things happen, but you can always return to your outline.
A day or two before your deposition, take the time to rehearse; running through your questions and imagining responses will help you sort out the most advantageous order of questioning. This will also help you to remain cool and collected in the face of any unexpected responses.
You should plan to arrive at your deposition appointment early. This will give you time to introduce yourself to the court reporter and provide any necessary information. You want to make sure that he or she has the correct spelling of the names of all parties, including attorneys. This would also be a good time to let them know your transcript requirements. In some cases, you might also want to provide any case-specific language or terminology.
Once the deponent is sworn in by the court reporter, they will be under oath and instructed to answer questions truthfully. At this point, the record begins.
Communication is Key, Lee
There is an art to communicating when it comes to deposing a witness. You want to get the right testimony. To do this, you ask the right questions, in the right way, and make sure that the witness answers the questions simply and directly. An accurate deposition transcript depends on your ability to communicate, and we all know that communication is a two-way street.
When you ask a question, speak clearly. When the deponent is speaking, listen to every word. You want to be sure that the response they’re giving truly answers your question. When you are listening, you won’t miss anything. If an answer is not clear, ask the question again or follow-up with another question to clarify.
The key is to keep it on a conversational tone. The witness will probably be a little nervous and intimidated. Your job is to lead them into a natural, one-to-one conversation. You want to always remain calm, not confrontational, and speak in a relaxed voice. When your questions have a natural flow, you will get the most honest answers. It will also be easier to control the direction of the conversation.
You’ll start off with asking basic information about the witness. Their name, age, employment, etc. Once that is out of the way, refer to your outline and proceed with addressing the points of the case. It is important that you ask clear questions, preferably those that require a yes or no answer. You’re not interested in opinions or assumptions. Just the facts.
Make eye contact and observe their nonverbal cues and body language. If you need to refer to your notes, that’s fine, but stay focused on the witness. Don’t interrupt them in the middle of an answer or talk over them. Even if they are obviously lying or contradicting a previous answer, let them finish their response and then ask for clarification. This is for two reasons: 1) It’s respectful and, 2) The court reporter is creating a record of everything that is said and that is nearly impossible to do when two people are speaking at the same time.
Stay on Track, Jack
The success of your deposition also depends on how well you maintain focused control of the proceedings. Don’t allow yourself to be distracted or taken off track. Take a minute or two to redirect your thoughts, if necessary. If there is unexpected information that comes to light, follow through with additional questions, but return to your outline.
You may be interrupted by an opposing attorney who tries to hijack your deposition. He or she is free to object to a question and that will be noted on the transcript. Beyond that, it means nothing. Once the court reporter has noted the objection, continue with your questions.
If the opposing attorney is trying to give the deponent instructions or is otherwise being verbally disruptive, ignore them and focus on your conversation with the witness. Don’t respond or engage. The record will show them as disrupting the proceedings.
When you are presenting exhibits, be sure to allow time for the court reporter to mark them before you begin speaking again.
Make a Great Record
A witness deposition can sometimes take hours; even days. It’s tedious and nerve-wracking for all parties involved. It’s up to you to conduct your deposition in a professional manner. Own it.
Whether your case is headed for trial or you’re hoping for a settlement, with the right preparation, communication, and focus, you will end the day with the facts you need and an official record that will help you achieve a successful outcome.
Read an interesting blog about one young lawyer’s first deposition here.