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Quote of the Day - As bright and brilliant and as good a lawyer as Judge [now Chief Justice] Roberts was, I asked him - he'd never taken a deposition, he'd never picked a jury, never tried a case. He never tried a case. She has. We need people like that who have real-life experiences. - Harry Reid
My First Deposition
Well, not mine - I've been practicing long enough that I actually don't remember my first deposition. In one of my cases, however, today was the first deposition for a young associate in opposing counsel's firm. Today's depos were not going to make or break the case, and they were each only about an hour to an hour-and-a-half long.
The lead opposing counsel called me prior to the start of the depos to ask me to "play fair" and not take advantage of a neophyte. It was a cordial call, with my agreement to do so as long as it didn't prejudice my client.
But I'm getting ahead of myself.
The young associate did a fine job, and afterward had the foresight to ask for my evaluation of her performance. I've taken a few depos in my time, so I'm somewhat qualified to offer an opinion. There were two major missteps in the way she asked questions.
First, she read her questions from her outline - virtually never strayed from the written questions. Second, she failed to ask the cross-examination questions. Let me explain.
For those who have both taken a number of depositions and gone to trial, you'll understand the second point. For those who never get to trial, it may seem difficult to get past the first point.
After the written discovery in a case is exchanged between the parties (as was the case here), the lawyers usually set the depositions of the other party to explore the case further. In a deposition, it's a rare event that the questions and the answers remain "on script" according to the asking attorney's outline. Typically more information comes up, which requires the attorney to stray from the outline and follow up on the newly-offered information. To remain on-task and on-outline misses the opportunity to learn more about your opponent's case.
More important, however, is to understand your case well enough to ask the same questions in the depo that you intend to ask in the trial. That way, you get the opposing party committed to a line of answers. When time for the trial rolls around, you can expect those same answers and at the same time be prepared to impeach that witness if those earlier answers change at trial. It's an effective technique to destroy a witness's credibility before a jury with changed answers from an earlier deposition - as long as the questions and answers go to one of the pivotal issues in the case.
Too many times lawyers miss the opportunity in a deposition to ask the cross-examination questions. It becomes apparent only after you've done several trials and recognized the missed opportunities in depositions.
But there's one young lawyer who learned that lesson early on - at least for her next trial.