A solid deposition strategy is essential to any lawyer. Wherever you currently land in your career as an attorney, your framework of best practices for litigation can always be improved.
“In order to take effective depositions, attorneys need to know what questions to ask and to do that, they need to know the law,” states the ABA.
Though the basic rules of engagement when it comes to taking depositions are the same, every case is different.
Add the following tips to your strategic toolbox to manage your deposition workflow for each case with ease.
Successful deposition strategies involve thorough preparation
Preparation
- Understand the case: Know all facts, legal issues, and witness roles.
- Review documents: Examine all relevant case materials.
- Know the witness: Research the witness’s background and potential biases.
- Outline objectives: Define clear goals for the deposition.
Question formulation
- Start broad, then narrow: Begin with open-ended questions, then move to specifics.
- Use leading questions sparingly: Avoid objections by letting the witness provide their own answers.
- Cover key topics: Address all essential topics, including facts and timelines.
Deposition techniques
- Control the pace: Keep the deposition focused and on track.
- Stay professional: Maintain a calm, professional demeanor.
- Listen actively: Pay attention and follow up on inconsistencies.
Use of exhibits
- Introduce relevant documents: Corroborate or challenge testimony with documents.
- Mark exhibits clearly: Properly mark and reference exhibits for the record.
Recording and summarizing
- Accurate record-keeping: Ensure accurate recording of the deposition.
- Summarize key points: Highlight key insights for case strategy.
Follow-up
- Analyze testimony: Identify inconsistencies or admissions.
- Plan for future depositions: Refine strategy based on new information.
Ethical considerations
- Maintain integrity: Avoid harassment or intimidation.
- Comply with rules: Follow all procedural and legal rules.
Tips for attorneys with their deposition strategy
Attorneys often rely on things to conduct a successful deposition strategy. Here are some tips tailored specifically for attorneys to enhance their deposition strategies:
1. Prepare, prepare, prepare
Thorough preparation is essential for attorneys to build a strong foundation for deposition proceedings. This involves dedicating ample time to comprehensively understand the case, pertinent legal principles, and the background of the deponent.
Attorneys meticulously review all available documents, evidence, and prior testimonies associated with the case to grasp its nuances and intricacies fully.
By analyzing documents and evidence, attorneys can identify key themes, inconsistencies, and potential areas of contention to address during the deposition.
Additionally, reviewing prior testimony helps attorneys identify potential discrepancies or contradictions in the deponent’s statements.
This comprehensive review process enables attorneys to formulate effective lines of questioning, anticipate potential responses, and strategically navigate the deposition to elicit valuable information in support of their client’s case.
Thorough preparation lays the groundwork for a successful deposition and enhances the attorney’s ability to advocate effectively on behalf of their client.
2. Organize your outline
Organization is not always about being perfectly prepared but understanding all the possible outcomes — and being able to ascertain the best scenario for your client.
Developing a deposition plan is crucial for attorneys to conduct effective questioning and gather valuable information. Firstly, attorneys must outline clear goals and objectives for the deposition, aligning them with the broader case strategy and client’s interests.
Even if you can’t get the outcome they were hoping for, your role as an attorney is to be able to stay solution-focused throughout the process. A detailed outline and record of case theory notes, evidence and other pertinent support keeps your case timeline on track.
Find and establish a technique that works for your cases — such as the funnel technique — and experiment with applying more than one based on your client’s needs.
By establishing goals and structuring the deposition process, attorneys can maximize the efficiency of their questioning, uncover relevant facts, and strengthen their case.
A well-developed deposition plan enhances attorneys’ ability to elicit crucial information, assess witness credibility, and advance their client’s legal position during the litigation process.
3. Don’t always work within “the box”
When asked during a deposition hearing if you just want to go with the usual stipulations, don’t always accept the given format. Consider the facts of your case and decide strategically, before you’re asked, what’s right for your client.
An attorney asked to agree to the “usual stipulations” should either decline to do so or clarify on the record what is meant by that term, according to the ABA. Even when you’re using a detailed outline, things can go entirely off-script in the courtroom setting.
The savviest litigators are prepared for even these sudden changes and shifts.
Some courts have a default setting for handling deposition hearings. Maybe you have detailed objections you want to put forth or other vital points. Give yourself the room to garner solutions that you probably wouldn’t have been able to see working within “the usual stipulations”.
4. Learn the art of objections
When an objection is made is not the time to figure out a strategy. Since jurisdictions vary in the way they choose to handle objections, before stepping into the courtroom, understand the local rules.
Managing objections effectively is crucial during depositions. Attorneys should anticipate potential objections and be prepared to address them confidently, citing relevant rules of procedure or case law to support their position.
Your research should be able to support you in preparing a list of possible triggers for objections and opportunities they can provide to reach your client’s desired outcome.
Consulting with the witness’s attorney can help resolve objections promptly and professionally, fostering a cooperative atmosphere during the deposition.
Use your outline to delineate your plan of action for possible objections your opponent could make as well as your own to stay on track, even in the event of a courtroom curveball.
By handling objections with poise and engaging in constructive dialogue with opposing counsel, attorneys can ensure the deposition proceeds smoothly while safeguarding their client’s interests and preserving the integrity of the legal process.
5. Accept the win, then move to the next
After getting a win on a point, many attorneys become sidetracked, giving their opponent an opportunity to advance. During a deposition hearing, it’s about accepting your win, and moving on to the next win ahead of you.
Since so few cases actually make it to trial, wasting your energy during this phase on digging into your opponent or small wins is fruitless. There’s also being able to make the call on when it’s the right time to end a deposition — which you can’t make when you’re sidetracked by small wins.
6. Know your witness(es)
Whether they are a witness for your client or your opponent, noting points like a witness’ likelihood of attending the trial and how their statements align with your intended outcome can put you at an advantage.
Review their opinions in the provided reports and any other available information that can inform your strategy. During deposition, start with open-ended questions that allow you to gain more information to fill in the places where you need more detail.
7. Ask the tough questions
Some attorneys choose to avoid questions altogether that they may feel can lead the discourse down a road that could harm their client’s case.
Crafting a deposition strategy that involves asking tough questions demands meticulous planning and precision. Attorneys must thoroughly understand the case, anticipate responses, and frame questions effectively.
Throughout the deposition, maintaining professionalism is paramount, ensuring a focused pursuit of relevant information without veering into hostility.
Strategic timing is crucial, introducing tough questions at opportune moments to maximize their impact, and persistence is key, as revisiting tough questions or pressing for clarity may unveil crucial insights.
Documenting responses meticulously facilitates analysis and informs subsequent legal actions. Collaboration with colleagues provides valuable perspectives and enhances strategy refinement.
Your opponent will certainly be unafraid to dig into those topics. So, it’s best to be prepared for even those tough questions by developing a strategy to shift things in your favor. But the more you know early on, the more you know you’ll need to solve for. Don’t let yourself be surprised.
8. Incorporate emotional intelligence
The way you connect with deponents can create a scenario where they either shut you out or tell you their life story. Consider your delivery of questions to deponents and your demeanor as important to this exchange.
A friendly approach can shift the response of witnesses and help you get the information you wouldn’t have been able to ascertain with a corporate demeanor. Also, understand their position in the deposition process and the pressure that they’re under to deliver.
Depending on the case, the deposition process can be quite challenging. But, with the right strategy, you can shift things in the right direction for your client and continue to grow your caseload.
Remaining solution-focused and incorporating strategies like these in each phase of the litigation process makes for a well-rounded firm.
9. Stay flexible
Staying flexible in you deposition strategy is essential for attorneys to effectively respond to evolving situations.
Attorneys should adapt their deposition strategy based on the witness’s responses and any new information that emerges during questioning. This requires attentiveness to subtle cues and the ability to adjust questioning techniques accordingly.
Being prepared to pivot or change tactics allows attorneys to capitalize on opportunities, address unexpected developments, and maintain control of their deposition strategy.
Flexibility enables attorneys to navigate complex scenarios with agility, ensuring that they can effectively advocate for their client’s interests and achieve the desired outcomes during the deposition proceedings.
Conclusion
A robust deposition strategy is paramount for attorneys at all stages of their careers. Understanding the law, meticulously preparing, and organizing an effective deposition plan are foundational elements.
Attorneys must also remain adaptable, ready to pivot their strategies based on evolving circumstances. Handling objections skillfully and maintaining a solution-focused mindset enhance the deposition process.
Knowing the witnesses, asking tough questions, and incorporating emotional intelligence add depth to the strategy. Embracing flexibility ensures attorneys can adeptly navigate the complexities of depositions and advocate effectively for their clients.
By continually refining and applying these strategies, attorneys can strengthen their litigation practice and achieve favorable outcomes for their clients.
