The Practical Guide to Better Deposition: Examples and Commentary

The genesis of this Guide is found in the Anatomy of a Deposition Program. Recently, a participating attorney expressed to the writers a desire for a source to consult beforehand and as an ongoing resource after the program.This Guide evolved into a stand-alone resource. Broadly speaking, it covers four areas: (1) how to control the record; (2) learning everything the witness knows; (3) locking it all in; and (4) making and dealing with objections. Each part reflects best-practice principles - not in academia - but in our years of practical experience. Each is a strong example of how to accomplish the goals set out at the start. The accompanying commentary memorably explains the thinking behind the questions. Understanding the "why" behind the example empowers you to improve your style and better your depositions.The Guide takes on ten unnecessarily problematic areas where lawyers often struggle. The first two of these are at the very start of the deposition. There is tension between an initial set of terse, quasi-leading questions that yield an unequivocal record for later use in motions and trials and a more conversational style used to learn information, our primary deposition goal. The two examples show how to maintain balance on this tightrope.The Guide also covers information-gathering skills necessary for learning at any deposition. One example illustrates our view that strong follow-up skills are at the heart of the deposition process. Other examples apply the general skill set to two specific areas that commonly arise in deposition practice: how to ask questions about a conversation and how to provide organizing principles for authenticating documents and asking questions about them. All of these examples are brought home, where the key tools for translating learning into admissions are detailed.The contrasting vignettes illustrate the hazards that stem from failure to embrace the example demonstrated in the transcript. These vignettes are designed to be realistic, but bad. A review of their defects makes a compelling argument for using the example language.One example is actually a continuation of the first, separated for analysis and discussion. Similarly, several later examples are related: the example about a conversation uncovers a document that is authenticated in the next, becomes the subject of questioning in the following, and is used as the basis of the admissions thereafter. Two other examples are stand-alone, as are the final two examples.