How to Take a Deposition
Depositions are a cornerstone of the discovery process in litigation. Mastering the art of taking a deposition is essential for lawyers seeking to build strong cases, uncover critical facts, and position their clients for success at trial or in settlement negotiations. This article provides a comprehensive guide for attorneys on how to take a deposition—covering preparation, execution, and best practices.
What Is a Deposition?
A deposition is a formal procedure, for lawyers to obtain sworn testimony from a witness or party in a lawsuit. It is a key tool for gathering evidence, preserving testimony, and evaluating the strengths and weaknesses of a case before trial.
Depositions are governed by state and federal rules, which outline procedures for oral and written depositions.
Why Are Depositions Important?
- Fact-Finding: Depositions allow attorneys to obtain detailed information from witnesses and parties.
- Preserving Testimony: Testimony can be used later in court if a witness becomes unavailable.
- Impeachment: Inconsistent statements can be used to challenge credibility at trial.
- Settlement Leverage: Information uncovered can drive negotiations and settlement outcomes.
How to Prepare for a Deposition
1. Know the Case Inside and Out
- Review all pleadings, discovery responses, and relevant documents.
- Understand the legal issues, case theory, and objectives for the deposition.
2. Research the Witness
- Investigate the witness’s background, prior statements, and potential biases.
- Anticipate areas of vulnerability or expertise.
- For expert witness depositions, fully understand the topic area to formulate cross examination methods.
3. Outline Your Goals
- Define what you need from the deposition (e.g., admissions, timeline clarification, expert opinions).
- Develop a flexible outline of topics and questions, but be ready to adapt based on answers.
4. Organize Exhibits
- Prepare and mark all documents you intend to use.
- Bring sufficient copies for all parties, and ensure exhibits are referenced clearly for the record.
5. Know the Rules
Conducting the Deposition: Step-by-Step
1. Swear in the Witness
2. Begin with Ground Rules
- Explain the process, remind the witness to answer verbally, and clarify that they can request clarification if needed.
3. Questioning Techniques
- Start Broad, Then Narrow: Use open-ended questions to elicit narrative responses, then drill down for specifics.
- Listen Actively: Pay attention to inconsistencies or unexpected details, and follow up as needed.
- Control the Pace: Keep the deposition focused and professional, avoiding unnecessary tangents.
- Use Leading Questions Sparingly: Let the witness provide their own account to avoid objections and preserve credibility.
4. Handling Objections
- Opposing counsel may object to form, privilege, or relevance, but most objections are noted for the record, and the witness must still answer unless instructed otherwise.
5. Introducing Exhibits
6. Cross-Examination
- After your examination, opposing counsel may cross-examine the witness to clarify or challenge testimony.
7. Redirect and Re-Cross
Best Practices and Professional Tips
- Be Thorough, Not Aggressive: Maintain professionalism and avoid intimidation or harassment.
- Stay Organized: Use your outline as a guide, but be flexible and responsive to the witness’s answers.
- Record Accurately: Ensure the court reporter captures all testimony, and clarify any ambiguities on the record.
- Summarize Key Points: After the deposition, review the transcript and highlight critical admissions or inconsistencies for future use.
Common Deposition Pitfalls (and How to Avoid Them)
- Failing to Prepare: Inadequate preparation leads to missed opportunities and weak testimony.
- Overlooking the Rules: Ignorance of procedural rules can result in lost objections or inadmissible evidence.
- Not Listening: Focusing too much on your next question can cause you to miss valuable information.
- Allowing the Witness to Ramble: Keep answers focused and relevant to avoid unnecessary disclosures.
Deposition Checklist for Lawyers
- Confirm logistics (location, court reporter, technology)
- Know the governing rules and permissible objections
- If the deposition is of your client or witness, prepare your deponent.
- Review all case documents and evidence
- Research the adverse witness thoroughly
- Prepare a flexible outline of questions and topics
- Organize and mark all exhibits
- Set ground rules at the start of the deposition
- Listen actively and follow up on inconsistencies
- Keep the deposition professional and on track
- Summarize and analyze testimony post-deposition
Books for Lawyers on Depositions
There are a number of books that help lawyers learn practical skills for taking depositions and defending depositions:
The Deposition Handbook, 6th Edition
This is the definitive book on depositions of all varieties, written for lawyers in all areas of practice. It is mandatory reading for lawyers at many firms, and covers topics that range from basic information necessary to train new lawyers up to advanced deposition topics helpful to the most experienced lawyers. Now in its 6th edition, the book has expanded substantially to cover aspects of depositions including perpetuation depositions, FRCP 30(b)(6) depositions, video depositions and more. This definitive treatise on depositions is used by everyone from in house counsel for Fortune 500 companies, and leading Big Law such as Jones Day and Susman Godfrey, to top tier law schools including Harvard Law School.
Advanced Depositions Strategy and Practice:
Advanced Depositions Strategy and Practice is the leading book on depositions for plaintiff lawyers. This book is best for plaintiff lawyers with experience in handling depositions. It is used to improve deposition outcomes, to capture information that will improve settlement offers within litigation, and prepare you for trial. The authors, reveal proven tactics for how to elicit the information you need to support your case theory and craft a cohesive, convincing trial theme through deposition testimony. This book is co-published with the American Association for Justice.
30(b)(6): Deposing Corporations, Organizations & the Government
This book is a definitive guide to deposing business entities, organizations and governmental entities. The book covers the use of these depositions in federal court, noting all of the important case law. Additionally, the book provides an overview of each state's equivalent procedural rules, how they differ from FRCP 30(b)(6), and the applicable state court case law pertaining to these depositions. It is the only book solely focused on corporate representative depositions that fully develops the concepts necessary to master this area of practice. The Advisory Committee on Civil Rules used the first edition of this book when considering changes to the rule in 2016. The second edition includes the most recent changes to the rule implemented in 2020.
Additional books and videos for lawyers on depositions can be found here.
Taking a deposition is both an art and a science. With thorough preparation, strategic questioning, and a focus on professionalism, attorneys can maximize the value of every deposition—uncovering the facts that matter and building a stronger case for their clients.