Tips for taking effective depositions

By John Allison

Depositions are usually taken to obtain relevant factual information from a witness. If taken effectively, depositions can serve other purposes as well.  A deposition can be used to limit the impact of an adverse witness.  You may be able to obtain concessions from an adverse witness that will be helpful to your case. A deposition can also lay a foundation for impeachment of a witness at trial. 

To take an effective deposition, have a clear idea of what you want the deposition to accomplish. Consider how deposition testimony from the witness can be used to advance your theory of the case.  Then prepare a list of the key points you want to make with the witness. Using that list as a guide for the questions you ask will be far more effective than following a script. Make sure the documents you want to use with the witness are well organized and easy to find. 

From the moment you walk into the room where you will take a deposition, set the tone and take control. Maintain a friendly yet professional demeanor to help the witness feel comfortable and less guarded in answering questions. At the same time, be firm with the witness and with opposing counsel.

Insist that the witness answer the questions you ask.  Move to strike answers that are not responsive.  Note your objection to “speaking objections” or other improper conduct by opposing counsel. By protecting the record as it will appear in the deposition transcript, you will be able to seek relief from the court if that becomes necessary.

Finally, remember that the goal of a deposition is not to persuade the witness or anyone else to agree with your theory of the case. Avoid giving the witness an opportunity to explain inconsistencies or to clarify earlier deposition testimony. Impeachment based on inconsistent testimony should wait until trial. 

When the witness gives an answer helpful to your case, quickly move to a different topic before the witness can explain the answer. If the witness gives implausible testimony, resist the temptation to educate the witness. Instead, ask questions that commit the witness to every possible detail of the story he or she is telling. Once the witness is committed to facts that can be disproved by other evidence, you will be in a good position to undermine the effectiveness of the witness at trial. 

John Allison is a professional career coach backed by years of experience as a successful lawyer. He is the founder of The Coach for Lawyers and author of "The Art of Practicing Law: A Practical Guide for Lawyers."