/>iDepositions are where stories are tested, evidence is locked in, and credibility is revealed. TV courtroom dramas tend to focus on the trial itself. In reality, however, many disputes are shaped long before, in a quiet conference room, under oath, and with a court reporter typing every word.
As civil trials become less common, depositions have only grown in importance. They play a crucial role in influencing settlement negotiations, summary judgment motions (a dispositive motion where a court decides a case without trial based on the evidence), and even trial strategy. That makes mastering both taking and defending depositions a core skill for any litigator.
Here are some practical tips for the essential elements of deposition practice from planning, questioning, dealing with difficult opponents and witnesses, to protecting your client.
Approach With Care
Depositions aren’t just a box to check in discovery. They can set the tone for the rest of the litigation process by allowing attorneys to:
- Gather evidence and admissions.
- Test witness credibility.
- Identify gaps in the opponent’s case.
- Pin down testimony to prevent surprises at trial.
As Frank Dylewski of Phillips Lytle observes, depositions are going to become important in almost any case, particularly those in commercial litigation, whether that’s pretrial or at trial.
This is why even a seemingly low-stakes deposition must be approached with care. A single answer can shift the balance of a case.
Plan Before You Step Into the Room
Good depositions start with thoughtful preparation. That means more than just drafting a list of questions. You need to:
- Understand your goals. Are you seeking new information or locking in testimony that can be used for impeachment later if the witness changes their story?
- Know the rules of your jurisdiction (and the local legal culture). Some jurisdictions have strict time limits or ‘usual stipulations’ that can affect the scope of questioning.
- Decide whom to depose and in what order.
- Structure your examination to fit the witness and the case.
Choose Your Witnesses Wisely
Not every person with knowledge needs to be deposed. Sometimes, it’s better to wait until trial for friendly witnesses, or to skip those with little useful testimony.
Selecting the right deponents also requires you to consider whether they are likely to be available at trial. Witnesses who move frequently, retire, or otherwise may be unavailable should often be deposed to preserve testimony under oath.
Structure Your Questions
The organization of a deposition can be chronological, topic-based, or even intentionally scattered to keep a witness off balance.
It may be strategic to deliberately jump around, as it’s harder to keep up the facts of a lie if you’re constantly moving between subject matters.
When questioning, balance open-ended prompts (‘What happened next?’) with targeted leading questions to lock in key points.
Ultimately, Max Stein of Maxson Mago & Macaulay emphasizes that a strong deposition will help to ensure a smoother cross-examination during trial: “What you want is a clear definition transcript that you can just walk through. Get all of the testimony you need out of that transcript. Put it into easy bite-size pieces of cross-examination, where you’re doing the testimony more than the witnesses doing the testifying, and you can use that to present your case.”
The Art of Document Use
Documents can be powerful tools, but using them too aggressively may tip your hand before trial.
It can be advantageous to use documents in depositions to explore their contents and prompt the witness to explain something in them, to authenticate records or contracts, for the purposes of summary judgment or trial, or to confront the witness.
That being said, it may not be wise to confront the witness with documents during deposition in cases that have an eye towards trial. Confronting witnesses early will lose the effect it would otherwise have during trial, as there is a risk the witness will have regrouped and come up with a better explanation by then. Sometimes, however, confronting a witness in deposition can pressure the other side into settlement or dismissal.
Managing Difficult Lawyers and Witnesses
Difficult behavior can derail your flow. This could come in the form of a defense lawyer who uses an improper objection to subtly coach the witness, or a combative or forgetful witness.
Dylewski recommends identifying and making a clear record of obstructionist conduct, such as lengthy speaking objections, and being ready to escalate to the judge if necessary. This not only addresses the behavior but also protects the integrity of the deposition transcript.
Warren Holland of Goldberg, Miller & Rubin, explains that most of the time, difficult witnesses will fall into one of two categories: either amnesiac or combative. It is critical to identify which type your witness falls into early on as this will inform your approach.
Prepare Your Witness
Defending a deposition starts long before the first question. Preparing your witness involves:
- Explaining the process.
- Setting expectations for tone and pace.
- Role-playing questions (especially with nervous witnesses).
- Reviewing documents strategically.
You may want to remind your witnesses that the normal rules of polite society don’t apply here. It’s perfectly fine for a deposition to be one of the most awkward experiences they will ever have in life.
Objections and Redirects: Less Is More
Objections, such as those to an unclear or misleading question, are essential to preserve rights. However, overuse can irritate the witness and weaken your position.
Oftentimes, the best approach is to object to form when truly necessary and to otherwise allow the examination to proceed. The National Law Review offers a list of proper objections that can be used in a deposition.
The use of redirects, e.g., brief follow-up questioning by the defending attorney, should be rare. They should only be used to correct a serious misunderstanding that cannot be effectively addressed later.
Final Thoughts
A deposition is part performance, part investigation, and part chess match. Whether you’re asking the questions or protecting your witness, success comes from preparation and adaptability, as well as knowing when to push and when to let the other side make their own mistakes.
To learn more about this topic, view Taking & Defending Depositions. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested in reading other articles about litigation.
This article was originally published here.
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