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Keep an outline handy and don’t be afraid to look at it. The outline is your roadmap to ensure you don’t miss anything. It allows you to do the far more important thing during a depo which is to LISTEN to their answer to determine whether they actually answered the question and/or provided you an interesting point to expand on. Don’t worry about going too off topic because that’s what the outline is for. You will be fine!!!
Thank you so much 🙏
One bit of advice I didn’t see on here (I apologize if someone already pointed it out) is to sit down and read some deposition transcripts from other attorneys that you believe are too performers. You obviously can’t bill for it, but I found taking a look at how other people conduct depositions gave me some good insight on what I like/ don’t like doing in my own depositions.
Thank you — I work well with examples, so this is a good idea for me
Expert or fact witness?
Author - I would try very hard to get past a feeling of embarrassment because you are asking for help. I have been in practice for a decade and there’s routinely things that come up that I’m either only somewhat familiar with or not at all. I will ask my partners and associates, prior coworkers, etc. Just the same as they ask me when they come across something with which I am more familiar. I’ve long said that if it gets to a day where I feel 100% confident in everything I’m doing because I feel that I already know everything about it is the day I need to retire because that’s when you start making dumb mistakes.
I’m a 3rd year and have done many depositions and I routinely talk to colleagues and the partner before a deposition. Almost always someone gives me an idea for lines of questioning or a new tip/trick/outline. I totally get feeling embarrassed but don’t hold back questions. Depositions can be intense. You need to feel as prepared as possible.
Everyone gave great advice for prep. Definitely make an outline with questions you HAVE to ask, but allow yourself to run with it if you see the story/facts going in another direction. Try to mark where you left off if you go off track so you don’t miss anything later on.
Don’t leave anything unknown. If you don’t understand a description, make sure you have something understandable on the record. This can get uncomfortable but I always blame it on myself.. “my apologies, I am not trying to trick you. I am just not understanding this. Can you please explain XYZ”
Also, OC cannot make speaking objections!! Let them preserve their objection, ignore it and wait for the plaintiff to answer. If they direct their client not to respond, either take a break and figure out if it’s information you’re entitled to (as defense counsel you most likely are) and either state you will “mark it for a ruling” so you can make a motion later and get an answer, or call the judge and discuss. Do not get into arguments on the record. Unprofessional and unnecessarily stressful IMO. Unless you’re into that…lol.. We are lawyers, follow the damn law and get it over with.
Don’t let OC bully you or make you feel rushed. Same with the reporter. You are running the show. Your firm pays the reporter. Everyone is on your time. OC might sense it’s your first time and try to take advantage. Don’t let it get to you. If you need a break to call someone and ask a question, do it. Better to annoy plaintiff’s counsel than your boss.
Prepare/redact and pre-mark your exhibits beforehand and exchange with OC the day before as a courtesy.
I’m always super friendly and nice. If you have to ask uncomfortable questions, you can preface that you “have to ask this” or “I’m not trying to pry, but please explain XYZ.” Having a good rapport with the witness is key. If they like you, the depo runs a lot smoother.
Good luck!!
Start with background and education and employment- move to crux of the case. Take notes and listen the answer. Try to recreate the situation and paint the picture the witness is telling.