Wherever you currently land in your career as an attorney, your framework of best practices for litigation can always be improved. “In order to take effective depositions, attorneys need to know what questions to ask and to do that, they need to know the law,” states the ABA. Though the basic rules of engagement when it comes to taking depositions are the same, every case is different.
Add the following tips to your strategic toolbox to manage your deposition workflow for each case with ease:
#1: Organize your outline
Organization is not always about being perfectly prepared but understanding all the possible outcomes—and being able to ascertain the best scenario for your client. Even if you can’t get the outcome they were hoping for, your role as an attorney is to be able to stay solution-focused throughout the process. A detailed outline and record of case theory notes, evidence and other pertinent support keeps your case timeline on track. Find and establish a technique that works for your cases—such as the funnel technique–and experiment with applying more than one based on your client’s needs.
#2: Don’t always work within “the box”
When asked during a deposition hearing if you just want to go with the usual stipulations, don’t always accept the given format. Consider the facts of your case and decide strategically, before you’re asked, what’s right for your client. An attorney asked to agree to the “usual stipulations” should either decline to do so or clarify on the record what is meant by that term, according to the ABA. Even when you’re using a detailed outline, things can go entirely off-script in the courtroom setting. The savviest litigators are prepared for even these sudden changes and shifts.
Some courts have a default setting for handling deposition hearings. Maybe you have detailed objections you want to put forth or other vital points. Give yourself the room to garner solutions that you probably wouldn’t have been able to see working within “the usual stipulations”.
#3: Learn the art of objections
When an objection is made is not the time to figure out a strategy. Since jurisdictions vary in the way they choose to handle objections, before stepping into the courtroom, understand the local rules. Your research should be able to support you in preparing a list of possible triggers for objections and opportunities they can provide to reach your client’s desired outcome. Use your outline to delineate your plan of action for possible objections your opponent could make as well as your own to stay on track, even in the event of a courtroom curveball.
#4: Accept the win, then move to the next
After getting a win on a point, many attorneys become sidetracked, giving their opponent an opportunity to advance. During a deposition hearing, it’s about accepting your win, and moving on to the next win ahead of you. Since so few cases actually make it to trial, wasting your energy during this phase on digging into your opponent or small wins is fruitless. There’s also being able to make the call on when it’s the right time to end a deposition—which you can’t make when you’re sidetracked by small wins.
#5: Know your witness(es)
Whether they are a witness for your client or your opponent, noting points like a witness’ likelihood of attending the trial and how their statements align with your intended outcome, can put you at an advantage. Review their opinions in the provided reports and any other available information that can inform your strategy. During deposition, start with open-ended questions that allow you to gain more information to fill in the places where you need more detail.
#6: Ask the tough questions
Some attorneys choose to avoid questions altogether that they may feel can lead the discourse down a road that could harm their client’s case. Your opponent will certainly be unafraid to dig into those topics. So, it’s best to be prepared for even those tough questions, by developing a strategy to shift things in your favor. But the more you know early on the more you know you’ll need to solve for. Don’t let yourself be surprised.
#7: Incorporate emotional intelligence
The way you connect with deponents can create a scenario where they either shut you out or tell you their life story. Consider your delivery of questions to deponents and your demeanor as important to this exchange. A friendly approach can shift the response of witnesses and help you get the information you wouldn’t have been able to ascertain with a corporate demeanor. Also, understand their position in the deposition process and the pressure that they’re under to deliver.
Depending on the case, the deposition process can be quite challenging. But, with the right strategy, you can shift things in the right direction for your client and continue to grow your caseload. Remaining solution-focused and incorporating strategies like these in each phase of the litigation process makes for a well-rounded firm.
