Defending a Deposition

Some lawyers say cases are won or lost during the discovery. Depositions are important for the success of the case. The role of the attorney defending a deposition cannot be minimized. The question is how to be on top of the profession when you are defending a deposition. Consider the following list to perform well.

 

1. Be Prepared

As a defending attorney, you are the deponent’s sole support and guidance. Careful analysis and hard work are required to pave the way for successful litigation. Your role is not just to show up and make objections. This means that you have to spend time on research, document review and information gathering. You may need to interview your client or witness to establish his/her knowledge about the case and to make sense of how he or she will testify. You will need to review the mandatory disclosures and other documents.

Once you do the hard work, go ahead and make an outline. This will give you the big picture and will help you be structured. When you have the big picture in front of you, it will be easier to ask the right questions during the actual testimony.

 

2. Prepare your Witness

Witness preparation is not easier than preparing yourself, but it is part of the deal. Even though you may have interviewed the witness several times, he/she may still come up with new information during the deposition. To avoid unpleasant surprises, you may need to know the witness and his/her role in the case. When you talk to a witness, familiarize him/her with the deposition rules, provide him/her with an overview of the case, familiarize with key documents. You may even practice hard questions. Explain that the opponent wants to get as much information as possible. So, when a question is asked, the answer should be straightforward. To the question “Were you there?” should be answered “yes”, not “yes, with my sister.”

Finally, instill confidence in your deponent as confidence is the key to successful deposition, especially when your opponent is educated and persistent.

 

3. Know How to Object

It is a good strategy to write the objections in the margins of your note and raise them when appropriate. You may object to the question because attorney-client privilege protects it. If this is the case, instruct the witness not to answer the question.

 

4. Ask the Right Questions

When the opposing counsel finishes his/her questions, you have the right to ask questions. You will have most of the questions prepared beforehand. But there may be some that will arise in the course of the testimony. It is surprising that a lot of attorneys just don’t listen to the testimony as they are too concerned about their prepared questions. Avoid that. Listen carefully and voice questions at the right moment.

 

5. Deposition: Know the Federal and Local Rules

It is as essential to know the rules of your jurisdiction as the Federal Rules governing depositions. Know these rules will provide you a guide on how the counsel should act, including prohibiting improper objections. You may need to have these rules at your disposal so that you can use them if something extraordinary happens.

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