In the second of my three blog posts on tips for better deposition outlines, I am going to talk about a tip that will help you improve the mechanics of taking a deposition.

If you followed my first tip, you are starting each section of your outline with a set of goals—things you expect or would like to achieve in that section of the deposition. Of course, you will spend your time in the deposition itself asking questions to get the testimony you’ve set out in these goals. That’s where this second tip comes in.

Tip 2: Write Out Every Question

I strongly recommend writing out all the questions you hope to ask at a deposition, including alternative branches of questions you might ask depending on how the witness answers.  And when I say "all," I mean all. Write out every line of questioning you think you might pursue, even if it seems easy.

As an example, consider the hypothetical deposition of the CFO from my first post.  A section of your outline might look like this:

I have written questions like this for every single deposition I have ever taken, even after taking dozens and dozens of depositions.  Why?  It is NOT because I read from my deposition outline in the deposition.  In fact, I rarely look at my written questions during the actual deposition, other than when I'm starting or ending a line of questioning or at a break.  I like to keep my eyes on the witness, not on my outline, and I like to keep the tone of a deposition casual and conversational, not scripted.  But I still write out all my questions in advance.  Every single one of them.

The reason I write out all my questions is because I know of no better way to discipline yourself to think through how different questioning approaches might go.  I have learned the hard way that if you think "oh, the witness will definitely agree to that" or "I'll have no problem getting that," it is easy to miss subtle ways the questioning might go astray.  I can't tell you the number of times I've seen lawyers ask a question in a deposition and then not know what to do next because the witness didn't give the answer they expected.  Sure, skilled examiners can recover and keep going, but relying on your wits to deal with this type of situation should not be your primary strategy. You want to think these things through as much as you can in your prep—not on the fly in the deposition.

For example, take the line of questioning in (3) and (4) in the screenshot above, which walk through a few ways to use a job description to get the witness to admit something about a certain aspect of her job.  I've seen plenty of deposition outlines that would just contain a line like:

Required to report all important financial matters to CEO. See, Employment Description, third bullet ("report all material events to the CEO.")

And, superficially, that looks fine.  You might think any decent questioner should be able to use a document with that quote to get the desired admission.  For example, the questioner might just ask, "Would you agree, reading that document, that one of your responsibilities was to report all important financial matters to the CEO?"

But writing out your questions makes you realize it could be a little trickier.  The document says "material events;" is that the same as "important financial matters?"  What if the witness thinks the two things are different? Or what if the witness is suspicious of your characterization and tries to joust about the meaning of the word "material."  Writing out the examination questions forces you to think through these possibilities and the different approaches you might take to address them.  For example, as shown in the outline clip, starting the questioning by asking the witness for her open-ended understanding of the document might get you the answer you want without needing to affirmatively suggest an alternative.  Similarly, writing out the "If no:" scenario forces you to think about how you might handle a witness who decides to be difficult on the topic.

In addition, writing your questions can give a colleague who reviews your outline a better sense of what you are trying to do in a particular section, and may cause them to offer more helpful suggestions.  For example, in the outline above, an alert fellow attorney might note that you really should think through what to do if the witness answers question (1) by saying she is not familiar with the document. Or someone might point out that you should be prepared on question (2) to deal with the possibility the witness might say the document does not accurately describe her job responsibilities.

The example above might seem simple, and, in truth, it is, but the same approach works with topics of any degree of complexity. But—and this is key—it is a big mistake to do this only for complex topics.  Do it for everything.  First, because something you think is simple can turn out to be complex when you get into it.  You would much rather find that out when you try to write out your questions than live in the deposition.  Second, using this technique with simple examples builds good questioning habits.  I have found over the years that forcing myself to write out questions in prep, makes me a better questioner overall including during those times when you have to do your questioning on the fly (unexpected things do happen; we're just trying to minimize them).

What I think you will find if you haven't used this technique before, is that it feels cumbersome at first. But I promise it gets easier and easier the more you do it, and then it becomes automatic. Eventually, you hit a point where the questions and their alternative branches just materialize fully formed from your mind.  That's where you want to be, and writing out every question is the way to get there.

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In my final tip, I’m going to talk about a very specific, but very useful, tip for making your outlines way easier to use. If you’ve worked with me, you probably know this one already. No spoilers! See you next month.