Thorough preparation of the deposition witness is critical to successful deposition practice. Prior to the deposition, the witness should be advised how and when to respond to questioning, the roles of counsel and the court reporter, and how to appear and behave during the deposition. A well-prepared witness will also appreciate the strategic importance of their testimony to overall litigation objectives and be prepared to testify helpfully — but truthfully — on anticipated areas of inquiry.
Apart from witness preparation, however, is the separate but equally critical area of attorney preparation. A well-prepared attorney will take steps to ensure that the witness’s deposition testimony advances litigation objectives to the maximum extent possible, whether that’s defending the witness or creating a transcript that will support a settlement demand or summary judgment motion.
A well-prepared attorney will take steps to ensure that the witness’s deposition testimony advances litigation objectives to the maximum extent possible, whether that’s defending the witness or creating a transcript that will support a settlement demand or summary judgment motion.
Well-prepared litigators will know the law, will understand how each deposition fits into both their own and the opposing party’s litigation strategy, and then be ready to respond effectively if for any reason the deposition takes an unlawful or unhelpful turn.
Here are four suggestions for attorney preparation prior to the next deposition:
1. Review the Law
The rules applicable to deposition practice are surprisingly few. They consist mainly of the rules of evidence and the civil procedure rules for depositions. In the federal court system, the main source of guidance is Rule 30 of the Federal Rules of Civil Procedure, which sets out in detail the ground rules for oral depositions. Detailed knowledge of these rules is critical to success in every deposition.
The most important parts of Rule 30 for in-deposition practice are Rule 30(c) dealing with examination and cross-examination, and Rule 30(d) on motions to terminate or limit the deposition. Familiarity with these two rules will put counsel in the best position to effectively turn the deposition to the client’s advantage.
It will also be helpful for counsel to review local court opinions explaining which types of questions (and objections) are permissible during depositions. Common trouble spots include:
- Gratuitous comments from opposing counsel and/or comments directing the witness’s answer in a particular fashion
- Objections that are, in fact, suggested answers to the question
- Instructions that the witness not answer a question for a reason other than the assertion of a privilege
- Extensive on-the-record commentary from opposing counsel
Counsel should have a keen sense when these rules have been violated as well as knowledge of the correct procedure for terminating a deposition and requesting judicial assistance.
2. Understand the Opposition’s Objectives
Forewarned is forearmed, as the saying goes. Litigators should appreciate opposition counsel’s deposition objectives and be prepared to frustrate them to the extent lawfully and ethically possible. How does the deposition fit into the opposing party’s theory of the case? What testimony does the opposition need to support allegations made in the complaint?
If the purpose of taking the deposition is to support the opposition’s anticipated motion for summary judgment, how can counsel use the deposition to create factual issues that would preclude summary disposition?
Is the opposition’s purpose in taking the deposition to preserve testimony that will be used at trial, or is the deposition being taken purely for discovery purposes? Will the jury hear counsel’s questions along with the witness’s answers? Knowing how the deposition fits into opposing counsel’s litigation strategy should give counsel a roadmap for effective examination during the deposition itself.
3. Stage-Managing the Deposition Witness Cast
Counsel’s post-deposition evaluation of the impact of one witness’s testimony will in many cases mark the beginning of preparations for the next witness’s deposition. If a witness has given damaging deposition testimony, it may be necessary for counsel to revise the litigation strategy. There are at least two ways forward. The first is to depose additional witnesses that might more effectively cover the same strategic ground. If this is not possible, counsel might consider reducing the role the problematic witness was anticipated to play in the case — including re-pleading causes of action or defenses, if necessary.
4. Administrative Matters
Finally, don’t overlook administrative matters that can make the deposition proceed smoothly. Counsel should take steps to ensure that the witness knows where and when the deposition will take place. In the case of a remote deposition, counsel should ensure that everyone — particularly the witness — has adequate technology to create an accurate deposition transcript and video recording.
Counsel should also have ready the name and contact information for the supervising judge just in case the deposition goes off the rails for some reason.
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