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Taking depositions can intimidate any new lawyer. Whether the attorney just started practicing law or has finally paid enough dues to take critical depositions in high-stakes cases, preparation strategies and techniques can put the newbie in a league with the most seasoned litigator. When preparing for a deposition, there are certain questions every lawyer must ask: Who am I deposing? Why am I taking this deposition? What do I want to elicit from this witness? What issues do I want to avoid? Consider whether the deposition is for discovery purposes or to preserve testimony for trial or a motion. If the witness likely will be present at trial, a discovery deposition can be somewhat informal, and the lawyer can use it to fish for relevant information. However, if the lawyer takes the deposition to preserve testimony for trial or for a motion, questions must be calculated to achieve the desired testimony. Preparing for a deposition involves getting ready to listen and react. The preparation process should include drafting an outline of examination questions prior to the deposition, but avoid creating a too-detailed outline that can become a crutch. Broadly outline topics of inquiry instead of writing examination questions word for word; that will help you listen to the witness’s responses. These responses will inevitably lead to areas of testimony that the new lawyer did not anticipate and may turn out to be of crucial importance to the case. When preparing for a deposition, consider whether it’s appropriate to attack the witness’s qualifications or the foundation for his or her opinions. Take a few minutes to research case law on Texas Rule of Evidence 702 regarding qualifications of experts and how to challenge them based on the Texas Supreme Court’s 1995 decision in E.I. du Pont de Nemours and Co. Inc. v. Robinson and the U.S. Supreme Court’s 1993 decision in Daubert, et al. v. Merrell Dow Pharmaceuticals Inc. Outline the basic requirements for reliability set forth by those cases, and formulate questions that will support a motion to strike all or part of the witness’s testimony. Before deposing a witness, particularly an expert, research that witness’s background. Read his or her curriculum vitae, consult the Internet, conduct a criminal background search, review court records for civil actions filed by or against the witness and identify cases where the witness has testified in the past. Reviewing this information will reveal inconsistencies between how the witness represents himself or herself and reality. Armed with this background information, a lawyer must decide whether to impeach the witness during the deposition or use the information later at trial. Review the legal theories and defenses of the entire case before each deposition. This won’t just help a new lawyer plan how to seek the relevant facts of a case but will also ensure use of the appropriate terminology during the deposition. For instance, if the legal theory is that a worker is not an employee but rather is an independent contractor, a lawyer who refers to the worker as an employee or the business as an employer will be making an embarrassing mistake and potentially subjecting the client to an admission. BE JUDICIOUS A well-worn trial lawyer mantra is: Never ask a question at trial to which you do not know the answer. Thus, it may be safer to impeach the witness during a deposition. However, doing this sacrifices the surprise factor. Showing the jury an inconsistency in a witness’s testimony at trial for the first time denies the witness the time to formulate a good excuse. Making a witness stumble over an excuse in front of a jury will impact the witness’s credibility. Whether one chooses to impeach a witness during a deposition or at trial, the new lawyer must be judicious. Impeachment attempts can backfire, making the lawyer look like a bully and the witness look like a victim. A witness will reveal some of the most interesting information during a break from testimony or in an off-the-record comment. A lawyer should not probe a witness for information during a break but should listen to comments and bring them up when back on the record. A lawyer can respond to an objection during a deposition in two ways: Ignore the objection, or ask the opposing counsel to state the basis for the objection. Strategically, it may be appropriate to ignore the objection in situations where the question is not particularly critical. Furthermore, ignoring the objection will prevent the lawyer from losing his or her train of thought. It may also be best to ignore the objection when asking for the basis of the objection will allow the opposing lawyer to coach the witness. On the other hand, asking for the basis may quell an overzealous objector. More importantly, obtaining the basis for an objection will provide guidance on how to correct a problem with a question. Rephrasing a question or asking it several ways to avoid an objection is particularly important to preserving testimony for a motion for summary judgment or Daubert challenge. Strategic factors differ in every case and there is no single correct way to take a deposition. However, one thing is true for all depositions: Preparation is the key to success. Rosalyn R. Tippett is a partner in Gwinn & Roby in Dallas. She practices civil litigation primarily in the areas of professional negligence, construction defects, business disputes and products liability.

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