How effectively an attorney or the opposing counsel prepares for a deposition often determines how a case is settled or handled in court. While law school covers the basics of preparing for a deposition, practice and real-world experience are what will really help you learn how to prepare for a deposition.
Whether you’re an attorney experienced preparing for deposition testimony or you’re preparing for your first deposition, the following tips will provide an understanding and handle all types of legal matters.
Attorney’s working for corporations and larger law firms typically have the advantage of observing more experienced colleagues conduct depositions. New lawyers in small to mid-sized firms may not have that luxury. Because deposition testimonies are so important, operating in a professional manner and using advanced preparation techniques can help avoid legal pitfalls.
An important note is a difference between preparing your client for a deposition and preparing yourself. We’ll touch on both perspectives. However, the purpose of this article is to recommend ways for attorneys to prepare themselves for a deposition.
Learning How to Prepare For a Deposition is Key to Having a Successful Deposition
As an attorney, can you over-prepare for a deposition? Possibly, but rarely is too much preparation detrimental to an effective deposition strategy. However, you can undoubtedly be under-prepared, and that rarely, if ever, works to the advantage of you and your client.
First, reacquaint yourself with trial rules in the court hearing the case. Request that the deposition be captured using audio and video technology. Make sure you confirm this when you communicate with the opposing counsel. Even if a court reporter will be present, it’s always wise to videotape the deposition so you can review it before a hearing or trial.
Many depositions today are conducted via video chat. Therefore, a court reporter may not be on the call. That’s why it’s crucial to have the audio portion of the deposition transcribed by a professional and reliable company capable of producing certified legal transcriptions.
You’ll also want to have a reliable legal transcription company produce a certified transcript of all your depositions. Assemble all of the necessary exhibits in order and review each one before marking them as exhibits. Know each document and understand how it can benefit your client or be used to their detriment.
It’s always a good idea to prepare for the unexpected. An opposing counsel may ask your client about issues unrelated to the case. Often these questions are to test you and your client’s response. Don’t allow this tactic to distract you from the focus of the deposition. Object to the line of questioning if necessary. If you allow your client to answer questions on an unrelated topic, ask yourself if the other witnesses should answer these or similar questions.
Preparing Your Client For a Deposition
Please make sure your client understands they are under oath during a deposition. If they are not absolutely sure of the facts when presented with a question, advise them not to respond or state they are unsure of the facts. Ask your client to arrive early at your office or another location. Then you’ll have time to review with your client what to expect and gauge their temperament. Clients may appear calm and poised at times yet lose their composure when confronted by an experienced counselor when asked challenging questions.
Since the rules of evidence don’t apply in depositions, attorneys may ask any question. For example, attorneys may ask questions on hearsay or opinions. Objecting to irrelevant or trick questions is often necessary to avoid client impeachment. When you do object to a question from the opposing attorney, do so firmly but politely. In many circumstances, the attorney will acknowledge and move on. If the opposing counsel proceeds, instruct your client not to answer the question.
Attorney’s cannot harass a deponent. If one persists, note your objection again and ask the attorney to refrain from such actions. One of your defenses includes filing a motion to terminate.
Inform your client that their responses should be short, direct, and concise. Remind clients not to provide an unnecessary opinion or disclose unnecessary information. If your client is unsure about the question, they should ask the opposing attorney to restate or clarify the question.
Watch Similar Depositions
Watching more experienced attorneys depose a witness is one of the best ways to prepare for a deposition. Each attorney has a unique style. The strategy that works for one attorney could prove wrong for another. Whether representing a defendant or plaintiff, observing the deposition tactics and demeanor of a more experienced litigator can give you a feel for what methods work and how.
Similar to today’s jury trials, many depositions are recorded using the latest audio and video technology. Reviewing the video recording of a complex deposition may provide insight on how to structure your outline and ask relevant questions. Studying similar types of depositions is also important when instructing your client how to answer certain types of questions.
Be mindful of how the opposing counsel uses objections and especially how witnesses respond. Clients, like attorneys, come in all types, so no two are alike. However, watching other depositions provides insight into how future depositions may develop.
Become an Expert on Your Case
Advising an attorney to become an expert on their case seems trivial. Nonetheless, you may be surprised how many attorneys discover that the opposing counsel is better informed about their client’s case than they are.
Over time, you’ll figure out how to work smarter instead of harder when reviewing the facts of your case. New or inexperienced attorneys usually take longer to prepare for a deposition than more experienced ones. Take advantage of your inexperience by using your case preparation time wisely. Before you know it, you’ll better understand where to allocate your time best when preparing for a significant deposition.
Preparing and coaching your client is vital. However, don’t neglect to consider your strategy for what you would like to get from deposing the opposing witness.
What is the end objective of the deposition? Are you seeking to establish or re-establish the facts of the case? Are you hoping to uncover incriminating or impeachable evidence? Would you like to establish additional facts you don’t presently have? Do you feel open-ended or leading questions are more effective for certain witnesses?
Also, make a list of everything you know about the case. Then, begin compiling a list of everything you don’t know or may not know. The latter will help you develop your questions and how and when you will ask them.
Deposing Expert Witnesses
Expert witnesses can prove valuable and detrimental to a legal case. Before deposing an expert witness, research and learn about their background. Deposition witnesses with superior knowledge, also called expert witnesses, will incorporate technical jargon into their testimony, so you must be prepared for this.
Make sure you know and understand the keywords they may use and how to rebut their testimony. Also, be prepared to separate facts from their opinion. It’s impossible to understand everything they might incorporate into their testimony. When applicable, ask expert witnesses to explain complicated information in layman’s terms.
We’ll stress this multiple times. Listen to the witness’s response to questions instead of focusing on the next question. Often, a witness will mention something not in your case file or not known. Use this opportunity to understand any new facts, so you be prepared to address them as the case moves forward.
You’ll also need to think about how and when you will object if a witness reveals unsubstantiated or irrelevant information.
Outlines Are Better Than Prepared Questions
This article’s entire premise involves superior deposition preparation, part of which is thinking about the questions you’ll ask opposing witnesses. Excellent preparation is still paramount. However, consider developing an outline of your deposition strategy instead of bringing a list of prepared questions.
The major problem with prepared questions comes when the testimony takes an unexpected turn. A well-developed outline offers the opportunity to consider precisely how to phrase questions during a deposition. After posing a question to a witness, remember to do the following. Listen intently to their response instead of thinking about the next question.
How a witness phrases their answer is equally as important to their body language and overall reaction. Is the witness answering confidently and calmly, or are they uncomfortable with specific lines of questions?
Handling Objections From Opposing Counsel
Everything is going well. Your preparation for this deposition is paying off. Your outline is solid, and meeting your expectations, then the opposing counsel objects.
There are procedural rules regarding objections, so it’s wise to master them. When an opposing counsel objects, simply note it and move forward. Witnesses are projected from answering questions involving a privilege, or possibly when a limitation order by the court is in force.
Take a moment to consider the objection and if it has merit. Often attorneys will use protests to throw you or your client off, even when they lack legal value. A deposition is not the place to argue strategy. However, understanding the rules of civil procedure and the federal rule of civil procedure is beneficial.
You may proceed if you feel the question is appropriate or rephrase the question. If an attorney tells their client not to answer your question, then note the reason. Chances are you’ll have another opportunity to explore the same line of questioning later on.
What Questions Can Be Asked In a Deposition?
The rules of evidence do not apply in a deposition. Therefore, an opposing counsel may ask questions of opinion or about hearsay.
Attorneys are not supposed to tell their clients not to answer a question. However, they may object to a question or line of questioning under specific grounds, such as privilege or possibly issues involving unprotected witnesses. After all, you certainly want to avoid clients or witnesses committing perjury by providing false or misleading information.
Do You Have to Answer Questions In a Deposition?
Yes, unless the question violates privilege or is irrelevant to the case. Questions that impose on the rights of your client do not require an answer. Examples include questions about a person’s health, religious beliefs, or sexuality. If these questions are asked, the opposing counsel must state why such information will have a bearing on the case.
Sometimes an attorney will ask the same question later on or seek the same information by rephrasing the question. A good rule of thumb is to ask yourself if a judge would consider the question relevant to the case.
Reviewing Your Deposition
Upon the completion of your deposition, take time to review it after you receive the completed transcription. Retain the services of a transcription company capable of producing a certified deposition transcription. Some transcription companies use multiple foreign transcriptionists, making transcribing complex legal terminology challenging, if not impossible.
Also, make sure you order a “verbatim” transcription so that every word and utterance gets recorded for future recollection. Reviewing how a defendant answered a question could be as valuable as the words they used.
Why Transcriptions Are Important For Your Depositions
Retaining the services of a reliable and qualified legal transcription company is vital when reviewing a deposition transcript. Attorneys and clients are often shocked by the transcription rates charged by court reporters or court reporting firms. Plus, court reporters usually take much longer to transcribe depositions than legal transcription companies.
Obtaining the services of a professional legal transcription company capable of certifying their transcripts of legal proceedings is paramount. Transcription Outsourcing, based in Denver, CO, only hires experienced legal transcriptionists in the U.S., and they must pass a comprehensive criminal background check.
Transcription Outsourcing can certify all legal proceedings from depositions to hearings to trial and custody cases. Why not take advantage of a free trial and evaluate the finished transcription. If you have questions regarding legal or court transcriptions, simply call or stop by our corporate offices in Denver to speak with a member of the management team.
Transcription Outsourcing, LLC is a Denver, Colorado-based online transcription services company. We provide fast, accurate, and reliable transcription services for individuals, law firms, legal departments, and government agencies of all sizes.