Deposition tips for new lawyers

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Chances are, “Depositions 101” wasn’t a part of your law school curriculum.

To fill that gap, Wisconsin Law Journal asked a few veteran litigators for their tips on how to survive and thrive at that first deposition. Here’s what they had to say.

Know the rules. Review the state statutes related to depositions upon oral examination (sec. 804.05) and the use of depositions in court proceedings (sec. 804.07).

Among the useful info you’ll find, according to Kevin Lonergan, of the Herrling Clark Law Firm Ltd. in Appleton, is which objections must be made at a deposition. Secs. 804.07(3)(c)1 and 2 provide that objections to witness’ competency, or to the relevancy or materiality of testimony are generally not waived by failure to make them at the deposition. However, objections to the manner of taking the deposition, the form of the questions or answers, or in the conduct of parties are waived unless an objection is made at the deposition.

Prepare yourself. Know the facts of the case thoroughly. If the deponent is an expert, know her area of expertise as well she does.

“Read the same texts they do. Learn the jargon used and industry standards and practices,” says Patrick W. Brennan, of Crivello Carlson S.C. in Milwaukee. Your command of the subject matter will come through quickly by the quality of your questions. It will also help build your confidence – opposing counsel will soon perceive that you can’t be intimidated on the basis of inexperience.

Read a more senior lawyer’s deposition transcripts, says Lonergan. Try to find the same type of deposition that you’re about to participate in; if you’ll be deposing a witness to an accident, find a deposition of a witness to an accident to see what type of questions were most effective. Also, if the deponent is an expert who testifies frequently, transcripts from her previous cases might be available through organizations such as the Wisconsin Association for Justice or Wisconsin Defense Counsel (formerly Civil Trial Counsel of Wisconsin).

Prepare a list of short, simple questions. If your questions are too long and contain multiple clauses, you’ll spend more time haggling with opposing counsel over the form of your questions, rather than obtaining probative evidence, says Brennan. Even when you do get an answer, if you haven’t made a clear record, the value of that to impeach the witness at trial might be diminished, if the judge or jury cannot tell the deponent’s position from the transcript.

When it comes to questioning, Brennan says another “don’t” is the “tag on” – making a statement, followed by, “Isn’t that true?” or, “Correct?” Frequently, you’ve created a double-negative. You might think your assertion was clear, but it may not be – especially when read later by someone who wasn’t at the deposition.

Prepare your witness. Brennan offers the following standard advice: “Tell the truth.

Ask for clarification if you don’t understand. Don’t volunteer information. Say you don’t know or you don’t remember if that’s true.”

But you also need to ask tough, open-ended, “why” questions, that you anticipate will be asked on cross-examination. “Why did you do that? Was it part your training? Did your employer advise it?”

Don’t be afraid to discover weaknesses in your case. It’s better to learn about them now than at the deposition or trial. Moreover, the deponent needs to know that she’ll be pushed, so she’ll be ready.

At the deposition’s start, explain what’s about to happen. Robert. L. Jaskulski, of Habush, Habush & Rottier in Milwaukee, typically provides an explanation of the process – that he’ll ask questions, the deponent will answer, and the court reporter will record it. Verbal answers are required. And, the deponent should ask for clarification if she doesn’t understand a question.

“I always end that by saying to the witness, ‘If you answer the questions that I ask you, I’m going to assume you understood the question. Is that fair?’ I get them to admit that it’s fair, so they can never say later, at trial, that they didn’t understand a question from the deposition. Then they can’t back off an answer during trial.”

Listen. Don’t be too scripted, adds Jaskulski. You need an outline of potential questions or topics to cover, but if you rigidly stick to it, you might miss something in an answer that needs a follow-up. Let the deposition follow its natural flow.

Be firm when opposing counsel is being an obstructionist. If he’s coaching the witness with speaking objections, you need to object immediately, says Jaskulski.

“Most of the time I’ve found, even as a young lawyer, that if you state your position early enough and firmly enough, it will persuade opposing counsel to conduct themselves appropriately. However, when it doesn’t, the next line of defense is to try to get the court on the line, or if you can’t and it continues, terminate the deposition.”

Get “memory lapses” on the record. Sometimes, it’s the witness who’s obstructionist, with “I don’t remember” as a frequent response. Keep at it. Jaskulski says that the witness’ credibility tanks with every evasive answer, if it’s something a reasonable person would likely recall.

Let the purposes of the deposition guide your words and actions. If the deposition is being taken to learn more about the case and you are the questioner, Lonergan says, err on the side of asking too many questions rather than too few.

Other times, the deposition is necessary as a means of committing the other side to a position, says Brennan, “And one that hopefully, you’ll be able to impeach him or her with at trial.”

Finally, sometimes the deposition can be used as a tool of persuasion. Mindful of the fact that most civil cases settle before trial these days, Catherine M. Rottier, of Boardman, Suhr, Curry & Field LLP in Madison, says she often uses a deposition to convince the plaintiff and/or her attorney that her case might not be as strong as she thinks.

For example, with an auto accident case where there were preexisting injuries, she will start with, “You always tell the truth to your doctors, don’t you?” She follows that by showing the plaintiff a medical record preceding the accident and documenting a preexisting condition.

“People don’t always remember everything from every doctor visit, and sometimes the plaintiff is overly focused on the accident at issue – it’s not that they’re bad people,” says Rottier. “I want to get the case in a posture to be settled, at a reasonable level, so I may use a deposition to demonstrate that the picture might not be as rosy as she thinks it is.”