Depositions are one of the most critical aspect of any complex litigation. It’s an opportunity to get answers, even if the answers are not always in line with your assumptions.
I look to depositions as a form of negotiations: constantly digging deeper to understand the witness his/her motivations, grievances, perceptions, and facts. I’m always advocating for my client but the best way to advocate for a client in a deposition is not to badger, annoy, or infuriate the witness. The absolute best way to conduct and manage a deposition is to think of it as a form of negotiation and that involves active listening.
A good deposition consists of two forms of questions, with an emphasis on the second form:
- fishing with a spear gun
- fishing with a net
Fishing with a spear gun refers to those careful, targeted questions. Generally this refers to questions that are “yes” or “no” until I have painted the witness into a corner.
Fishing with a net means asking broad questions, creating space and opportunity for the witness to expand on their response, to voice their grievance, to explain their concerns and the things that are most critical to their position. Fishing with a net means I’m not really asking targeted questions but just trying to dig as deep as I can into the witnesses position and state of mind. More often than not through this approach I’ll find nuggets of truth that are useful in understanding the strengths and weaknesses of the case from both sides. By asking broad questions and giving the witness time and space to respond (physically just waiting 5 -7 seconds) I also find they tend to paint themselves into a corner with a flood of facts and emotions.
That being said, when fishing with a net, I always keep the goals of the deposition in mind: prove the elements of my claim or defense AND identify weaknesses in the elements of the other side’s claims or defenses.
Usually, to prepare for a deposition I have a checklist of goals, just to keep me focused on the questions I may want to ask or address because the one danger in digging deeper/fishing with a net is you can get a little lost in the weeds or on issues that have very little bearing or relevance to the actual lawsuit. As such, the checklist of goals helps me get back on track with my questioning or assists me in knowing when to shift gears in my line of questioning.
To also prepare for a deposition, I identify correspondence or other documents (including the Complaint, the Answer and responses to Discovery Demands) that I want to walk through with the witness to confirm the accuracy of any statements or confirm that the allegations in the Complaint or Answer are still true as the witness understand them.
The take away here is, a deposition is an investigative process. I want to understand as much as possible especially if it impacts the case. Embarrassing, humiliating, or intimidating the witness is not a productive goal and it’s certainly not a professional approach. I have witnessed many attorneys forget this. It’s an expensive, unproductive waste of time. We’re all there to get to the truth and try to resolve a dispute. Getting angry, worked up, or any histrionics on any level for that matter do nothing for you. Any attorney who says otherwise is selling you garbage.
