TEN DO’S OF PREPARING FOR DEPOSITIONS
1. Start Early. It is best to begin deposition preparation as early as possible so that you will have time to reflect upon it, revise it, and perfect it.
2. Complete Paperwork Discovery First. The deposition will be better if all, or as much as possible of, the paperwork discovery is done prior to the deposition. Many questions will arise from the documents and interrogatory responses.
3. Work Around Your Theme. A good trial lawyer has a theme which will run from voir dire through closing argument in the trial. Questions should be framed so as to test and sound that theme even in deposition preparation.
4. Consult the Jury Instructions. Be certain about the elements of your case and that your prepared deposition questions address those elements.
5. Make Yourself An Expert in the Area. If the subject of the deposition will be a technical matter, get to the library and into the literature so as to educate yourself and make yourself (as much as possible) an instant expert in the specialized area.
6. Research the Deponent. Learn everything you can about the deponent and his or her background in advance of the deposition so that you will know who you are dealing with and will know best how to approach them.
7. Be Organized. Careful organization in advance of the deposition includes organization of areas for questioning and documents for review. This will give the questioner greater confidence during the deposition.
8. Spend Time With Your Client. If your client is the deponent, invest a lot of time in deposition preparation so that the client's comfort is maximized. Failure to invest that time can be fatal to the entire case.
9. Use Checklists. Develop and use checklists for routine depositions such as treating physicians, automobile drivers, and the like.
10. Try to Go First. As a general rule, it is best to take the other side's deposition first. If they have acquired some right to go first, suggest that the depositions be taken on the same day (back-to-back).
TEN DON’TS OF PREPARING FOR DEPOSITIONS
1. DON’T Depose Everyone. Try to limit the depositions to critical witnesses whose testimony you absolutely need to obtain by way of deposition. If there are others for whom you have written documents or alternative methods of locking them into certain testimony at trial, consider not deposing them.
2. DON’T Waste Time Developing in Useless Questions. Instead of the shotgun deposition, try to prepare to take a deposition by means of a rifle with a high power scope.
3. DON’T Sweat the Small Stuff. Life is too short to get tremendously wrapped up in which court reporter or whose office is used. Try not to make goal line stands on actually unimportant issues.
4. DON’T Plan Time Poorly. Be certain to start at an hour that will allow you to do the questioning you need to do. Also, try to avoid setting any appointments which may cause the foreshortening of questions that need to be asked.
5. DON’T Postpone Meeting with Client or Witness. Because of such things as human tardiness, automobile collisions, bad weather, and the like, it is a mistake to schedule the deposition preparation session for the same day as the deposition. If that meeting is scheduled in advance, all timing difficulties can be accommodated.
6. DON’T Ignore the Client's Questions. The client should be given the opportunity to contribute to the questions and be certain that the questions in their mind will be answered by the deposition.
7. DON’T Forget the Experts. If this is a case where there will be an expert involved, it is usually good to consult the expert for the purpose of getting that person's thoughts about what topics should be covered in a deposition and how.
8. DON’T Avoid Hard Questions to the Client. If your client is the deponent, part of the preparation must include the asking of all possible hard questions, even if they may offend the client. They should be asked in preparation so that the client has the opportunity to think about them before the actual deposition.
9. DON’T Ignore Chances for Rapport. The totally intimidated deponent is very often a totally uncooperative deponent. Therefore, try to do things to create rapport with the deponent.
10. DON’T Ask Everything. Certain questions are better asked at trial. If every single, imaginable question is asked at the deposition, the opponent will be fully prepared with every single, imaginable answer at the trial.