Taking Effective Depositions: Chart a Course and Overcome Obstacles

Taking Effective Depositions: Chart a Course and Overcome Obstacles

Tips for Young Lawyers

Success in taking a deposition comes with proper planning and effective execution. The basic recipe for success is to define the deponent’s importance in the case, identify the pertinent areas of inquiry and utilize the appropriate techniques for eliciting favorable testimony.

The deposition is multi-purpose. It is a fact-finding mechanism which permits defense counsel to obtain information integral to evaluating the strength of the plaintiff’s case and properly positioning the client’s defense. It is also an opportunity to erode the plaintiff’s case and bolster defenses by gaining favorable testimony. The purpose may also be more narrow; it may be simply to discredit a fact witness or preserve testimony for trial. Depending on the type of case and the witness, the deposition may be angled toward one particular purpose more than another. Although the purpose may vary, the keys to success — preparation and technique — are constant.

In preparing for the deposition, counsel must identify the deponent’s relevance to the elements of plaintiff’s cause of action and the client’s defenses. It is crucial to have reviewed all preceding discovery to understand how the witness fits into the case. Once counsel has an understanding of the witness’s role, identify the areas of inquiry — i.e., information and admissions needed from the deponent. While it is best to internalize the areas of inquiry to the greatest extent possible, counsel will likely need an outline for reference during the deposition.

The outline should be a simple list of topics and subtopics pertinent to the deponent, ideally no more than one page in length. It may be categorized by case elements, the simplest example being liability and damages. Generally, scripted questions are not helpful. A long list of predetermined questions is nearly useless in deposition because it is not conducive to the deposition format. When counsel is face-to-face with a deponent in a continual back-and-forth, question-and-answer format, scripted questions impede two crucial necessities: fluidity and poise. Counsel must be fluid and malleable at deposition, which entails actively listening to the deponent’s answers and formulating questions based on those answers. Additionally, it is necessary to maintain eye contact with the deponent to either build rapport or establish control. Counsel cannot do this while fumbling through pages of scripted questions.

Equally as important as preparation is execution. The likelihood is that the deponent is not going to immediately provide the testimony sought, whether or not due to intentional evasiveness. Silence is sometimes most effective at remedying a nonresponsive or incomplete answer. After the deponent provides an insufficient answer, stay silent. Instead of immediately asking the next question, allow a few seconds of uncomfortable silence, and the deponent may starting talking again. Additionally, the deponent who pretends not to understand counsel’s questions presents a common obstacle to eliciting necessary testimony. If a deponent claims not to understand an unequivocally clear question, counsel should inquire as to which part of the question the deponent does not understand. If the deponent is being evasive about the meaning of a particular word contained within a question, get the deponent to agree on the dictionary definition of that word and then re-ask the question. Counsel will either obtain the testimony needed or damage the deponent’s credibility by exposing the deponent’s evasiveness.

In almost every type of case, timelines are crucial. For example, points-in-time for contract formation and breach are integral to a contract dispute. Similarly, in a personal injury dispute, it is important to establish a timeline of the plaintiff’s pre-incident medical history. If the deponent feigns inability to provide a timeframe as to the occurrence of a particular event, elicit testimony to discredit the alleged memory problem. For example, counsel may ask: “It is your testimony that your prior back injury could have been as recent as one day before the car accident or as much as ten years before the accident, is that right?” In most instances, the witness’s memory will suddenly im- prove, and he will be able to at least narrow the timeframe.

Furthermore, the witness is not the only person in the room who may impede the deposition. An overzealous opposing counsel may also present an obstacle to a successful deposition through repeated speaking objections. Under Florida Rule 1.310(c), “[a]ny objection during a deposition must be stated concisely and in a non-argumentative and nonsuggestive manner.” The rule calls for brevity in objections, in part, to prevent counsel from coaching the witness and tainting the testimony. Unfortunately, sometimes, rules are flouted, and it is necessary to have a game plan for quashing speaking objections.

Maybe let the first speaking objection slide, assuming it is not especially egregious. After the second speaking objection, request that opposing counsel refrain from making speaking objections and make a record of the fact that it has occurred twice. After the third speaking objection, remind opposing counsel of the Florida rules on speaking objections and continue to keep count of the offenses. To drive the point home in more a impactful way, consider reading from a copy of The Florida Bar’s Committee on Professionalism’s Professional Handbook, which contains a section addressing the propriety of conduct at depositions. The purpose of doing so is not only to deter opposing counsel’s improper objections, but to also build a record for the court in the event that court intervention becomes necessary.

In short, success at deposition is driven by preparation and technique. Invest the time necessary to evaluate the witness’s role in the case in order to elicit impactful testimony. And, with continued deposition-taking, build upon the toolkit for effective execution.

This article was originally published in the Trial Advocate, Volume 42, No 2, a publication of the Florida Defense Lawyers Association and is republished here with permission.