In this series of posts, I’ll dig into the archives of The Trial Practice Tips Weblog and highlight some of my prior posts about depositions. Although you can see all of these post in this weblog’s deposition category, I thought I’d try to reorganize some of them in a new way.
I’ll begin with the first five ways a lawyer can ruin a deposition. I’ve been guilty of all of them at one time or another–
2. Failing to investigate the witness online. Just a few minutes of Internet research can turn up lots of things about a witness you didn’t know before. Here’s a post about that: “Deposition Tip: In Preparing for a Witness, Always Check the Web.”
3. Trying to wing it. Maybe you’re so good that your only preparation is getting to the deposition on time. Sound foolish? It is. See this post: “The Dangers of Winging It in Depositions.”
4. Neglecting the preliminary questions. Those cookie-cutter questions lawyers ask at the beginning of a deposition have a purpose. Don’t skip the “you know you’re under oath”-type questions, but don’t turn them into a speech either. Here are two posts that make these points: “Those Preliminary Deposition Questions: What’s Their Purpose?” and “Those Preliminary Deposition Questions: Don’t Make a Speech.”
5. Assuming the witness is telling you the truth. As human beings, we’re conditioned to believe what people say. I feel like I am, at least. That’s why I’m constantly making this mistake, even though I wrote this post: “Practice Tip: “Assume Your Deposition Witness Is Lying.”
6. Failing to ask the questions you should ask in every deposition. There are certain questions you should ask in almost every deposition. Here’s a helpful list: “What To Ask in Every Deposition.”
7. Asking the right questions, but in the wrong way. There are many ways to word a deposition question. Few of them are right. For a few explanation, see “The Anatomy of the Perfect Deposition Question.
8. Failing to listen to the witness’s answers. Sometimes a witness answers a question other than the one you asked. Unless you’re really listening to the witness, you might not even notice. See this post: “When the Witness Answers a Question You Didn’t Ask.”
9. Stopping after the witness answers “I don’t know.”Sometimes when a witness claims not to know an answer to your question, it excludes him as a witness on that point later in the case. Or does it? Not unless you know how to follow up appropriately. Here’s a post on that topic: “When a Witness Answers ‘I Don’t Know.’”
10. Paying too much attention to your opponent. Opposing lawyers: who needs them? Sometimes it’s best just to pretend they’re not there. See this post: “Ignore your opponent in a deposition.” (But also see “Depositions: Don’t Ignore Form Objections.”)
- “A Podcast on Advanced Deposition Techniques,” (discussing how to control a witness)
12. Neglecting the documents. Some lawyers bring documents to a deposition, intending to ask the witness about them, but do it only halfway. Instead, try digging in. Try this list of questions: “Depositions: Questions to Ask About Documents.”
13. Taking too long. Most depositions go on much longer than is necessary. Learn how to shorten them with the tips described in this post: “Can You Make Your Depositions Shorter?”
14. Failing to learn from your mistakes. If you keep a running journal of your mistakes, it’s less likely you’ll make the same one twice. See this post: “A Deposition Tip for Young Lawyers: Learn from Your Mistakes.”
15. Failing to incorporate your completed deposition into your overall trial plan. After a deposition has ended, do you add the transcript to a giant stack of depositions sitting on your floor? There are a number of other more sensible post-deposition steps you can take. You’ll find seven of them here: “Trial-Planning Steps to Take After a Deposition Has Ended.”