The most important part of any deposition is your prep. I don't care how skilled a questioner you are, how well you know your case, or how much charisma you have. If you don't put in the hours—yes, hours—thinking through what testimony you can get from your witness and how you are going to get it, you will not do well. Ignore those war stories from your colleague about how he took this great depo after being handed some documents and a two page outline the night before. If that really happened, he got lucky, and even then, I doubt it went as well as he claims.
There is only one way to reliably take good depositions: disciplined and thoughtful preparation.
Over three blog posts, I am going to share three tips for making your deposition outlines—and your overall prep process—better. Over two decades of taking depositions, I have found that following these tips ensures that: (a) I am disciplined in my prep, (b) I can refine my outline efficiently as I get closer to the deposition, and (c) I can use my outline effectively in the deposition itself.
Tip 1: Start Every Section with a List of Goals
I see a lot of meandering in depositions. Attorneys drop into a deep rabbit hole with a witness on some tangential aspect of an answer that will never matter to the case. Or they comb through a document the witness authored asking for explanations of every sentence, regardless of relevance. Sometimes this is valid discovery, but more often, it is a sign that the attorney doesn't have a clear idea in mind of what he or she is trying to achieve in this part of the questioning.
Start every section of your deposition outline with a list of goals for that section. This is a list of the admissions you expect the witness will make or facts that you hope to learn from the witness.
For example, suppose you are deposing a CFO in a case where an important issue is whether or not a particular event was considered a material financial event. Suppose further that you are generally hoping to use the CFO’s testimony to support your claim that the event was not material. Following my tip, the beginning of one section of your outline might look like this:
Let’s take a closer look at how these goals are structured.
There are three kinds of goals here: likely, possible, and alternative. The first three goals are things you are likely to get the witness to acknowledge based on documents, prior statements, or other testimony that you’ve reviewed. These are where you really want to spend your time in the deposition. Pick them wisely. The fourth goal is an example of something that you think it’s possible the witness will say, but you aren't sure you can get there. Writing out stretch goals like this is a good exercise. It forces you to think more broadly about how this witness might help your case, and it prepares you in case the witness starts unexpectedly giving you more than you hoped. Think of these as things you will grab if the opportunity presents itself, but you won’t spend a lot of time on if it doesn’t. The fifth goal in the example is an alternative goal, something you might try for if the witness doesn’t give you what you wanted in another goal.
Note also that these goals represent the three kinds of testimony you can get from a deponent: which I think of as “box in”, “box out”, and “clean out” testimony. The first, second, and fourth goals are examples of affirmative testimony. You want to “box in” the witness to a particular admission so she doesn’t say something different at trial. The third goal is example of testimony that will preclude the witness from saying something in the future. You want to “box out” the witness so she can’t be a witness on this subject at trial. And the final goal is a topic on which you don’t know exactly what to expect, but you hope to exhaust or “clean out” the witness’s knowledge. This type of questioning is common in depositions, but you shouldn't do it mindlessly. You will run out of time if you try to exhaust a witness’s knowledge on every possible topic.
There are several reasons writing out goals like this helps with deposition prep.
First, it forces you to think concretely and realistically about what you are trying to do in a particular part of the deposition. In reviewing evidence to prepare for the example deposition above, you may have come across a number of interesting communications between the witness and her CEO. But the exercise of forcing yourself to write out goals will make you think specifically about what testimony, given those communications, you can get that will advance your case. It also gives you an opportunity to think about how likely you are to get that testimony. For example, you might consider whether the goals above should include trying to elicit an admission that “the Well project was not a material financial event,” i.e., the ultimate issue in your case. You might also reach the conclusion that the witness is unlikely to go that far, and that it isn’t necessary if you meet your first two goals. Or you might decide to include that as one of your “possible” goals, but not a “likely.” Whichever answer you come to, the exercise of thinking this through is excellent preparation.
Second, having your goals written out will help you as you write and refine your lines of questioning (more on that in my next blog post). As you draft and refine your outline, the goals become your guideposts. Look back at these goals constantly as you draft your outline in order to make sure every line of questioning you plan out is in service of one of the goals.
Third, in the deposition itself, having a concrete list of goals written out is invaluable. No matter how well you plan, events in a live deposition can deviate significantly from what you expected beforehand. Having a list of goals helps you be flexible. I will typically refer back to my goals at breaks to gauge how things are going in the deposition. Perhaps the witness already gave me the testimony I was planning to elicit in this section during a previous line of questioning. Great; I can shorten up or eliminate the section. Perhaps the witness’s answers took us far from the questions I had planned. Looking at the goals (perhaps with a colleague’s help) will let me plan a way back to the points I'm trying to establish. By defining your key objectives in advance, you are able to pivot more easily when things go better, worse, or just different than you expect.
Finally, a list of goals helps you monitor your progress live in the deposition itself. During the deposition, I will cross out or check off goals that I have achieved, as well as take notes about whether a certain goal was not achievable or was achieved in a different form than I expected. This lets me assess in real-time how the deposition is going and make decisions about how to use my remaining time. For example, if I see I achieved several “likely” goals more quickly than I expected, that lets me know I may have more time to try to go after my “possibles.” In addition, by marking your goals throughout the day, at the end of the deposition, you have a handy reference for how things went, which you can discuss with colleagues or communicate to your client.
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With your goals written down, you are now ready to start outlining how you are going to achieve them. My second tip will help with that.