Depositions are crucial to the discovery phase and the outcome of litigation cases. If you are a new attorney and need advice on how to proceed or an old pro that needs a refresher, hopefully this blog will be of assistance.
Taking a deposition is easy, but taking a good deposition requires methodical preparation. First, figure out what your purposes are in taking the deposition. Next, find out who you are going to depose and what information you need from that witness. With that information, you can, begin to prepare questions that need to be answered during the deposition. The best way to do this is with an outline. Outlines allow you to be more flexible during the questioning in case new topics come up during the questioning. You will need to be able to listen to the witness and respond with a new question based on his/her answer. Here are some suggestions on developing a good outline:
-Start with a heading for "Background". Here is where you will ask the witness some questions about his personal and educational background. If the witness is an expert witness, and especially if his or her qualifications are an issue, you will want to go into detail about the educational background.
-Write out elements of the various claims. These are the ones that are at issue in the lawsuit and see if the witness's testimony bears on any of those elements.
-Proceed chronologically. Start at a point early in time and move to more recent events. Proceeding in this way makes it easier for the witness to remember things.
-Think in paragraphs .Identify a topic, ask a general question, then ask who, what, where, when, why and how, then use a closing question -- "Anything else you can think of?"
-Follow the "funnel" sequence suggested in interviewing. Ask broad questions first, followed by directed questions, followed by narrow questions to nail down specific facts.
Remember that deposition testimony can have a powerful effect on a case’s outcome. By preparing a good outline and some key questions, you can successfully navigate the deposition and be on the way to a successful outcome in your lawsuit.
Sources: “Taking a Deposition” by James Alexander Tanford, found at http://www.law.indiana.edu/instruction/tanford/web/archive/Depositions.html
“Deposition Tips for Young Lawyers” found at http://radio.weblogs.com/0104634/Litigation/Deposition%20Tips.htm
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