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Deposition Tips For Lawyers

Kurt BirkenhagenKurt Birkenhagen

deposition tips for lawyersDepositions can be tedious, stressful, or both. Yet they’re very important. Depositions are often the only time you can speak to someone critical to the case you’re litigating.

This advice will help you make the most of a deposition, especially one you conduct over the phone.

How To Prepare For A Deposition

Outlining your deposition is the best way to determine what you need to get out of your questions, and how best to go about it.

I almost always prepare an outline for a deposition. I use it as a tool to map out what I want to achieve in a deposition and to have a firm sense of what questions I plan to ask—and what I expect the answers to be.

Alex Lawrence, litigator and writer, Socially Aware

But don’t be too reliant on your outline. You might miss important information. “Don’t be wed to the outline. Be prepared to deviate from it and follow the deposition where it goes,” says Lawrence.

We have all seen lawyers so wedded to their outlines they fail to ask important follow-up questions. Instead, they plow ahead, eyes on their notes rather than the witness, not slowing down until they’ve gasped out their last scripted question. The better approach is to follow answers where they lead. Abandon the outline completely if that’s what your gut tells you to do.

Evan Schaeffer, litigator at The Shaeffer Law Office and author for legal professionals

You might not get the answer you were expecting and get caught off-guard. But you shouldn’t be afraid to pursue unexpected questions.

If you are expecting the answer to a question to be yes, and in the deposition the witness says no, don’t let that throw you. Go down the path of no and figure out why the witness answered that way. Don’t be so attached to your outline that you can’t pursue a different path.

Andrew Shedlock, litigator, Kutak Rock LLP

Don't be wed to the outline. Be prepared to deviate from it and follow the deposition where it goes.

Make sure you consult your outline before you end the deposition. You don’t want to have to reconvene for twenty minutes’ worth of missing testimony.

I also use [my outline] as a tool to make sure at the end of the deposition that I covered everything that I needed to cover.

Alex Lawrence, litigator and writer, Socially Aware

The only thing that will help you more than an outline is preparing your mind and body for a long day.

A good night’s sleep and ensuring you do not do anything odd outside of your routine is important, just like [before] trial.

Robert Farzad, founder, Farzad Family Law

Preparation and good rest go hand-in-hand. You’ll be up all night if you haven’t outlined as much as you should.

Preparation, organization and rest! The more prepared I am for questioning a witness, the easier it is to stay sharp. Being unprepared and disorganized causes too much stress and depletes energy.

Ken Levinson, litigator, Levinson and Stefani

How To Organize Exhibits And Use Them During Depositions

Exhibits can be time-consuming. Distributing them can be distracting if you don’t plan for it.

The biggest tip I can give is make sure you are well organized with your exhibits and you have a system worked out on having the witness review exhibits well ahead of time.

Robert Farzad, founder, Farzad Family Law

If you are proactive about discovery, your performance will be better.

Make sure that all potential exhibits have been exchanged beforehand. Being able to refer to the exhibits a witness is talking about can help to keep you focused on the deposition and prevent your mind from wandering.

Brian Focht, litigator, Stiles, Byrum & Horne

One of the most important things about staying focused in a deposition over the phone is resisting the temptation to work on something else.

Keep it simple when you’re organizing the exhibits. Number them in the order that you intend to use them.

Most of the time, each issue we address has specific exhibits and those exhibits for each issue are in chronological order.

Robert Farzad, founder, Farzad Family Law

I organize exhibits in the order I will question a deponent. For “document heavy” cases, we use Bates stamping with the help of Adobe.

Ken Levinson, litigator, Levinson and Stefani

It’s also helpful to let your court reporter know that the exhibit is coming. Tell them the order of exhibits beforehand, and give them time to enter the exhibit into the record before proceeding. For showing visual exhibits during a phone deposition, consider using screen sharing software.

How To Listen And Question During A Deposition

Active listening is critical. A smart deponent can evade your questions if you lose focus. Let the deponent take you where you need to go. Ask open-ended questions that will allow for a deponent to volunteer information you weren’t aware of.

[Early in the] deposition, all your questions should begin with one of the following words: who, what, where, when, why and how, after which you can coast along for quite some time with “what happened next?” If you are asking “did you” questions … you’ll either get no useful answers or, worse, answers that suggest responsive testimony but aren’t.

Victoria Pynchon, litigator, blogger at Lexis Nexis and Negotiation Law Blog

Let the deponent fill in the gaps. Remember that they’re probably not used to being deposed, so take pauses.

Utilize the pregnant pause. The deponent has probably never been deposed before. He’s probably nervous and wants to be done with it. People who are uncomfortable hate silence. So ask your questions. Be deliberate. Be slow. When they get done answering, wait. It may feel uncomfortable initially, but that’s okay.

Shawn Toor, associate, Williams Kastner

Utilize the pregnant pause. When they get done answering, wait. It may feel uncomfortable initially, but that's okay.

How To Improve Your Performance In Depositions

Review your performance after a deposition. You’ll learn from your mistakes, and do better next time.

Review your depositions to see how you can improve and sharpen your questions. Like many aspects of being a trial lawyer, perfection is rarely achieved so we should all have the mindset for continued improvement.

Ken Levinson, litigator, Levinson and Stefani

According to Farzad, it’s worth your time to review something—the transcript, the audio, or the notes—from your last deposition to improve the next time around. If you’re conducting your deposition on the phone,’s transcription and audio recording services can be very useful for this purpose.

The Etiquette Of Phone Depositions

Phone depositions are, at their heart, conference calls. We know a little bit about that. They are different than an in-person deposition. A few lawyers had phone deposition tips that we wholeheartedly endorse.

The mute button should become your close friend.

For phone depositions, mute your speaker when the deponent is answering. In person, it is easier to tell when the answer is finished. On the phone, it’s not. By muting your phone, you are less likely to cut them off right before they share something helpful.

Shawn Toor, associate, Williams Kastner

Be mindful of your surroundings.

Make sure you are in a quiet room if you are deposing someone via telephone. The last thing you need is to lose momentum because of an inadvertent cell phone call or colleague barging into your office.

Andrew Shedlock, litigator, Kutak Rock LLP

Most of all, your attention should not be divided between the brief you need to write and the deposition you have on speaker.

One of the most important things about staying focused in a deposition over the phone is resisting the temptation to work on or do something else. It’s incredibly easy to start looking at or reading something while you should be listening to what is said; the result, unfortunately, is that you miss important information.

Brian Focht, litigator, Stiles, Byrum & Horne

Preparing for depositions the right way is critical. If you under-prepare, you’ll realize after the fact that you didn’t ask the deponent about a critical issue. But if you stick too closely to a script, you won’t succeed either. As in trial or a hearing, you need to be able to improvise and adjust as needed. These tips will help you come prepared and ready to pounce.
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