Trial lawyers have limited opportunities to learn about their opponents’ cases prior to the first day of trial. It is crucial that attorneys use these opportunities wisely and not waste them getting embroiled with meaningless, form-over-substance battles with opposing counsel, and talking, not listening. If you let the sole chance to talk to adverse parties or witnesses slip by, you will be unprepared for trial and waste a lot of your client’s money.
After trying jury cases for more than 40 years, in my opinion, depositions are the most important discovery vehicle we have available. Other discovery options only give the opposing lawyer a chance to shield the client from you and craft their own answers to your questions. Lawyers (not clients) prepare answers to interrogatories and requests for admissions; those rarely provide a window into the other side’s case. Depositions (using the appropriate documents) are the key to learning about the strengths and the weaknesses of the case you will face in court. And after all, isn’t that what “discovery” is supposed to be about?
Nonetheless, newer lawyers often don’t get the primary purpose of a deposition — learning what the other side’s case is all about and what evidence they have to prove it. Perhaps lawyers are misled by what they see on television or in movies. Depositions are rarely dramatic; witnesses rarely crumble underneath a clever line of questions. Oftentimes, lawyers leave depositions knowing only a fraction of what the other side might put forward at trial. There are a number of ways to maximize your deposition.
1. The Goal of a Deposition: Learn About the Other Side’s Case
Depositions are unique in our litigation process. The rules of professional responsibility prohibit lawyers from talking directly to parties who are represented by counsel. And oftentimes, adverse witnesses simply won’t talk to you unless you take their deposition. Depositions are the only opportunity you have to talk directly to the other party or their witnesses.
Attorneys at the start of their careers sometimes get lost in this process. These lawyers want to impress clients, other lawyers and sometimes themselves with their toughness, cleverness and preparation.
You must use this one pretrial chance to evaluate the witness, how they will relate to the judge or jury, how persuasive they will be on the stand, and most importantly, how their testimony will affect your case. Your primary goal must not be to impress anyone, to browbeat the witness or to intimidate other lawyers. If you misconstrue the goal of a deposition, you will ask too many questions yet ignore the answers. In short, you must learn about the other side. If you don’t, you have wasted the deposition and left yourself at risk for multiple surprises at trial.
2. Listen and Learn
The poorest way to learn something is to keep talking. The best way is to listen. Shakespeare (one of many) observed as much when he described a character in The Taming of the Shrew:
“And he goes through life, his mouth open and his mind is shut.”
A lawyer learns only when asking a question, listening carefully to the answer and following up on the answers until the witness has run dry of information. Too often lawyers come to a deposition with an overly detailed outline replete with scripted questions set out in a military order. An inexperienced lawyer will stay tethered to the outline, asking the next scripted question no matter the answer to the previous question. The apparent fear is that without the lifeline of an outline, something will be left out. But blindly sticking to a script/outline guarantees that you will not achieve your primary goal — getting useful information.
All witnesses are prepared for depositions the same way. They are counseled to answer questions directly, briefly as possible and without elaboration. Therefore, a witness rarely provides all the information in an answer to a single question. The lawyer must listen to the answer and follow up with additional questions to elicit all the necessary information.
Murphy’s Rules for an effective deposition:
• Never use an outline.
• Never accept an ambiguous answer.
• Never ignore unexpected answers or even answers that are entirely off the subject.
• Immediately follow up on answers as soon as they are given. Chase the information as long as it takes to get it all.
The witness is already talking about the subject, and if you follow up immediately, there is no risk that you will forget to come back to it. An immediate follow-up also leads to new, fruitful areas of inquiry that sometimes are totally unanticipated. You are on a fact-finding mission and it makes no difference in what order you learn the facts.
You don’t need to go into a deposition without a plan. To make sure you cover all the necessary issues, develop a series of bullet points on areas you need to address. These bullet points usually include subjects you need to discuss (specific events, conversations, documents, meetings, conversations, medical treatments, monetary loss, emotional distress, identification of witnesses, etc.). Although your deposition can be free form and wide ranging, you merely check off bullet points as they are covered during the free-flowing answers. Before the deposition is concluded, make sure all the bullet points are checked off.
3. Ask Open-Ended Questions
For most people, a deposition is a once-in-a-lifetime experience. They are apprehensive and offer only minimal information directly responding to questions. Therefore, the questions must be designed to overcome these fears. At trial, lawyers control adverse witnesses by using leading questions suggesting answers they already know are coming. These leading questions are often answered with a simple “yes” or “no.” But depositions are much different. You don’t already know the answers to the questions; you don’t want yes or no answers. To elicit information from a recalcitrant witness, you ask open-ended questions seeking narrative responses. Too often, newer attorneys don’t ask all the necessary questions because they are afraid of harmful answers. But you don’t want to hear damaging answers for the first time at trial; you have to hear them during the deposition. You can’t prepare a response to harmful testimony if you don’t know it is coming!
Once witnesses start to talk, they usually will keep going. All witnesses have a story to tell and most want to share it with you. They just need help breaking the logjam and starting the flow of information. Despite heavy coaching from their lawyers, people want to justify their answers. Your job is to give them the opportunity to do so. Here are some types of questions to nudge people along:
“What do you mean when you said [blank]?”
“What were you thinking?”
“How did that make you feel?”
“Why do you think that person did [or said] that?”
“What would you have done differently?”
“Why were you [angry] [upset] [hurt] [embarrassed]?”
These types of questions should be asked repeatedly in follow-up questions as the witness volunteers new information. You will be astounded at the answers that you get. (And the witness’s lawyer will be surprised as well!)
4. Ignore the other lawyer
Your deposition should be a “conversation” with the witness. Normally, lawyers save their cross-examination for trial when it actually counts. It is impossible to have a productive conversation with any witness when you are arguing with the opposing lawyer. Newer attorneys sometimes feel that a deposition must be a personal battle with the other lawyer; they want to show the opposing side how tough and clever they are. When you allow that to happen, you spend your time and energy arguing with the other lawyer, not getting testimony from the witness.
Lawyers are entitled to make objections but you are not required to justify your questions. If the objection is valid, change your question. If not, merely let the lawyer make the objection and then direct the witness to answer the question. If the other lawyer instructs the witness not to answer the question, have the grounds for the instruction put on the record. If the question is important, you can meet and confer later. When necessary, seek an order from the court compelling an answer. But don’t argue with the other attorney; it is a waste of time and counterproductive. Such arguments disrupt your depositions, which, unfortunately, sometimes is precisely the objective. Witnesses become withdrawn when surrounded by seemingly angry people; they don’t volunteer information and their answers get shorter and less complete.
Depositions should be used to get information, not as an attempt to convince others how good a lawyer you are. The best way to get information is simple: (1) don’t be afraid of “bad” answers, (2) don’t use a detailed outline, (3) listen to the answers and follow up until you have exhausted the subject, (4) ask open-ended questions and (5) talk to the witness and not the other lawyer. The end result will be a wealth of information (some good and some not so good) that best enables you to prepare for trial.
A trial lawyer for more than 40 years, Timothy Murphy is the managing partner of the San Francisco office of Fisher & Phillips, a national law firm that limits its practice to representing management in labor and employment matters. He can be reached at email@example.com.