Ten Tips for the Young (and Experienced) Attorney When Taking Depositions

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Ten Tips for the Young (and Experienced) Attorney When Taking Depositions

 

Certain tasks in attorneys’ lives are necessarily repetitive. There are, however, advantages to repetition. For one, you get a macro-view of the right way and the wrong way to execute a task. For example, there's a happy medium depending on the jurisdiction of the breadth and level of detail to be included in a Complaint.  Federal Courts tend to want more detail, for example, primarily because the pleading standard is different, but State Courts differ from one another as well, and even specific judges have different hunger levels for detail.  Some judges really do like notice-pleadings and will take issue with a complaint for being overly detailed, while others will take issue with a complaint not being detailed enough, even though the standard for notice pleading is met. In the context of depositions: I have been fortunate enough to work for fantastic attorneys and to work against great and not so great defense attorneys. I learned from both. And so, here is my list of the things that work and the things that do not work in the taking of depositions: 

  1. Don’t chain yourself to convention. There are certain traditions to taking depositions, but the really great attorneys don't always follow tradition. It's not etched in stone that you must always start the deposition by saying, “If you need a break, will you tell me? If you don't understand a question, will you ask me to rephrase? Have you taken any drugs that would impair your ability to state or recall the truth?”, etc. Often times, those questions don't have to be asked right at the beginning.  The best depositions that I have reviewed, the ones that have gotten the most pertinent information, the most helpful admissions, be it for the plaintiffs’ or defendants’ side, are the ones that start off, like a good story, at the most natural point.

  2. Get to the point.  A question like, “why you were named by the attorney for the defendant/plaintiff as a person that might have pertinent information, or be a witness to this action?” saves time. It'll help both you and your client, the witness, and even the defense attorney. Because…

  3. Get to the Truth. The point of a deposition is to find out the truth. Don’t forget that. Are sound-bites important? Sure they are. But if you leave a deposition with great sound-bites but you’ve failed to uncover an important fact in your case, you may learn about it at trial instead. Yikes.

  4. Keep it tight. A deposition can be two and a half hours or 24 hours and there is very little correlation to how much pertinent information the attorney gets.  Keep it tight, be prepared.  You can do it. 

  5. Don’t blab about for no reason. The idea of making a deposition extra long just to poke at the other side backfires almost immediately. Do not do it.  Do not cut off your nose to spite your face.

  6. Be respectful. It will not get you far to be rude to the individual sitting there or to the defense attorneys. 

  7. Be respectful even in the face of improper behavior. I’ve been called “sweetheart” (and much worse) in a deposition. I was once (long ago) told that I was “too young” to be a good attorney. Guess what the above attorneys, who shall remain unnamed, had in common? You guessed it. They were all drinking humble-soup when we won our respective cases. No comeback is as satisfying as a well-deserved and honorably achieved victory.

  8. Some people lie.  We all know that. If you think “people never lie to me”, you are mistaken. If you're an attorney that takes depositions, people lie to you a lot, too. The idea is not to get the witness to tell the truth but to get to the truth. This matters when you are preparing to take your depositions. Phrase your questions while keeping in mind that the witness is not necessarily going to be honest.  

  9. Keep your cool. If an attorney improperly instructs the person not to answer, for example, it makes no sense to get heated.  Object on the record, make the record clear on the substance of the instruction by asking for clarification, file your motion, and move on.

  10. The world is watching. Being rude is particularly damaging, if you are being recorded.  If you are the attorney planning on trying the case, do not act like a jerk on camera.  Doesn't this sound obvious? Do not act like a jerk on camera. In fact, it never pays to be rude, not in front of the camera and not otherwise.

A. Emma Regev, Esq.