[author: Ed Leonard]
Depositions are easy if you remember their purpose. A deposition is a record the attorneys are making. Clarity and thoroughness are paramount. In this article, we’ll discuss ten common mistakes attorneys might be making in depositions and how to correct them.
- On key issues, make sure there is a clear question and answer to the question.
In the course of a deposition, there may be conversations back and forth, objections, colloquy and other things which interrupt the testimony of the witness. If you have to read or play three pages of testimony to understand what the plaintiff is saying, the testimony is not helpful. You need SOUND BITES!
- Avoid asking whether the witness remembers or recalls something.
If you get an answer, how can you be sure that the testimony is as to the substance of the testimony rather than the witness telling you they do recall? Ask simple questions like a reporter: who, what, when, how and why? Avoid argumentative questions (e.g., did you or didn’t you do something?). Ask why they did something. Then follow up and ask if there are other reasons.
- Listen to the answer given.
Outlines are great. Use them. But if the outline is a checklist and you do not listen to the answers given, then the outline is an impediment to a good deposition, not an organizational tool. Do not let the witness lead you astray. Mark your outline as to your progress, but follow through with testimony proffered and listen to what the other side is saying. Pin the witness down so you are certain that you have all facts and nothing else was a factor in the proffered testimony.
- Is the witness testifying to what he/she saw, said, heard, did, was thinking, etc., or is the witness testifying as to a conclusion or their analysis as to “what must have happened”?
If all the witness offers is analysis, then the witness is an expert, not a true fact witness. Find out the who, what, when, where and how issues and separate out the opinion, which the court should not allow into evidence.
- Traditionally the deposition process is one which allows inquiry into almost anything short of privilege. You may be cautioned to keep your objections solely to prejudice.
Sadly, post-COVID, the use of video depositions in lieu of live testimony at trial is now more prominent than it should be. Technically, there are limits to when these video depositions can be played at trial. However, given the use of video during COVID, many judges reject objections to the misuse of these videos in lieu of live testimony. This means you need to be ready to fully cross a witness, challenge the testimony and must object at trial to the improper testimony rendered. OBJECT. Ask questions. Be aggressive, every time and in every deposition.
- Do not allow objections to cut off your testimony.
It is a tactic some lawyers use. Take your time, keep asking questions, and if threatened with termination or a protective order, go with it. If need be, point out the interruptions are making it impossible to move forward without a referee’s assistance. Also note that the same will cause a trial continuance and further slow any offers or attendance at mediation.
You may need an order for a referee, but do not forget to ask that the other side pay for the referee. Likewise, with Zoom depositions, be careful as to what the witness is seeing or who he/she has spoken to off camera or during a break.
- If you are using an interpreter, make sure the interpreter is accurately translating.
Sound silly? Not really. Words mean something. How you phrase a question may make a difference.
- Do not explain your questions. Do not ask permission to inquire into areas.
The witness is usually a party or under subpoena. Permission is not required.
- Be professional; the witness is not your friend. Avoid playing up to the witness.
Self-evident. No need to agree with the witness. Avoid telling a witness how scary the situation might have been, or how tragic their loss is. Remember what you say on the record may be entered into evidence.
10 If you ask a bad question, withdraw it.
Lawyers are often guilty of saying to “strike that.” Bad habit. When you say that, you are actually making a motion & that motion can be denied or granted. It is up to the trial judge. When you “withdraw” a question, there is nothing for the court to comment on or to rule on. Get in the habit. If you ask a bad question, withdraw it. Ask a better question and move on.
