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Taking depositions may seem easy. But it is difficult to do well and almost impossible to do perfectly. At some point, whether it’s the moment that you’re stepping into the elevator right after your deposition has ended or later on, when you’re reviewing the transcript to prepare for trial, you will almost certainly think of at least one more question that you should have asked. Part of the problem results from having to manage conflicting demands and impulses while juggling exhibits, watching the clock and fencing with opposing counsel. You need to focus on the questions and issues that you’ve identified in advance but still be prepared to pursue any surprising answers or other openings. You also need to overcome your natural instinct to avoid questions that might make you or the witness feel uncomfortable. At the same time, you need to keep the witness talking by being polite and engaged. The primary point of a deposition is to find out everything you can about what the witness knows. You don’t want to be surprised by something that the witness says later in a declaration or testimony. In addition, a deposition is a great opportunity to get particular admissions in easily digestible form that you can use in motion practice or cross-examination � what I like to call “sound bites.” You need to use both open-ended questions that invite the witness to be expansive and leading questions that force him or her to accept particular propositions. One of the questioner’s biggest advantages is that most witnesses believe that they are the hero of their own story and are eager, if given the chance, to explain why. If you listen carefully, the deponent will keep talking to try to convince you that he is right. And he may also be willing to concede certain points to show you that he is fair-minded. GETTING PREPARED First, find and review all of the relevant documents, particularly every document from or to your deponent, in chronological order so that you can understand the sequence of events. Then pick the documents that you may want to use as exhibits. Err on the safe side because you don’t want to get caught without a document that you may need. Next make enough copies for the people attending and put them in folders by date or topic so that you can quickly find them as needed. You don’t want to be fumbling with documents when you should be giving the witness your full attention. I like to go into the deposition with three sets of tools: a basic outline of the topics to be covered; a highlighted set of the potential deposition documents; and a wish list of the admissions that I think I can get. The last item is the most idiosyncratic but I think is also the most important. By the time I have read everything that the deponent has written or reviewed, I usually have a good sense of what and how the witness thinks. I also know what documents help my case and what will be difficult for the deponent to deny. I like to come up with a list of short, declarative sentences that the witness will have to admit (or look bad refusing). It could be as simple as verifying a signature on a contract or confirming that a letter wasn’t answered. But I try to think more broadly about all of the requests for admissions that I would serve if I didn’t think that opposing counsel would parry the effort at great expense by debating about the meaning of each word of my requests. By contrast, in the flow of a deposition, a witness will admit to facts that are obvious and undeniable to anyone but a lawyer. GETTING STARTED Because I hate to be distracted by having to take notes, I usually arrange for a live feed of the rough transcript through a laptop. Doing so lets me pursue a line of questions without breaking eye contact with the deponent, check how the answers look in print and then ask any clarifying questions that may be necessary. It also helps to have an immediate record of the exact phrases used by the witness in order to set up more probing questions. Most lawyers, including me, start the deposition with an explanation of the process in order to preclude the deponent from subsequently repudiating testimony by saying that she did not understand what was happening. Keep this part as short as possible because it eats up time better spent on the witness talking. Emphasize that the transcript may be used as evidence in court and ask the witness to tell you if she doesn’t understand a question. I usually end with the following series of questions:

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