Honing Your Deposition Skills
By Benjamin W. Dowers
Google “prepare for a deposition” and you will be inundated with articles, blogs, and YouTube videos promising the keys to taking the perfect deposition. You can spend hours culling through tips and pointers. However, most lawyers agree that good preparation and experience are the best roads to honing your deposition skills.
Despite all the “self-help” available, I am routinely in depositions where attorneys ask poor questions, the deposition turns into a meandering conversation, or attorneys become embattled in back-and-forth speaking objections. This Practice Pointer Article does not dive into a complete overview of depositions but highlights two elements I think result in a good deposition: namely, preparation and question structure. There are other elements that are important such as proper objections, how to use exhibits, preparing a witness, or defending a corporate representative.
In today’s Zoom environment, remote depositions stress the importance to properly prepare. I think Zoom has forced attorneys to take better depositions since the lag between question and answer is longer, the talking over each other is minimized, and questions are repeated rather than the deponent assuming they understood the question. Overall, preparation and question structure will be unique to you. What works for one attorney will not work for others, and younger attorneys should take advice from senior attorneys but also craft their own methods and habits.
Preparation and Question Structure
It is important to remember that the client is paying you well to prepare for the deposition. Typically, you should review the file, discovery, and prepare the types of questions to ask. Also, you should determine the deposition’s objective to better prepare question structure.
In litigation, the parties will likely serve written discovery before depositions. Interrogatories provide an opportunity to get an idea of the expected testimony at deposition. I have seen attorneys try to avoid responding to interrogatories, arguing the opposing party can ask the interrogatories at the depositions. But I would warn against accepting this argument because interrogatories are usually verified and serve as effective tools if the deponent responds differently. Requests for production can require the opposing party to rely on specific documents to support a claim or defense and will provide you with necessary exhibits at the deposition. Discovery review is an important element to deposition preparation and is time well spent no matter how tedious.
Generally, I find that question preparation falls into two camps. First, there are attorneys who group their questions into topics after reviewing discovery. The questions are not written out, but the attorneys will proceed through the topics and formulate the questions at the deposition. The rationale is that one does not want to become bound to a script and lose agility to explore other topics. In contrast, there are attorneys who prepare questions verbatim and in a particular order. The process ensures all questions are answered and prevents forgetting important questions. Expectedly, there are blends of the two styles.
As an example of preparation and question structure, a few years ago I represented a general contractor in a construction defect case that centered around claims for water intrusion. The plaintiff, a condominium association, sued the developer and general contractor arguing the defective conditions were causing water intrusion and damages. During the case’s early stages, my office served subpoenas to various non-parties. One of the non-parties was a forensic engineer who conducted a turnover report of the condominium building – the turnover report is usually a forensic report produced when the developer turns over control of an association to the unit owners. We identified the forensic engineer through emails the condominium association had produced.
In the turnover report, the forensic engineer concluded there were issues with the construction that were causing water intrusion and recommended the issues be addressed. The produced emails also showed that the turnover report was sent to the then-condominium association’s board of directors. After receiving the turnover report, the condominium association did not address the defects. Over four years later (the statute of limitations in Florida), the condominium association had a new board of directors which hired a second forensic engineer who issued a separate expert report without any knowledge of the turnover report. The second engineer’s report espoused the same conclusions outlined in the turnover expert.
The condominium association designated the second forensic engineer as its testifying expert for liability and his deposition was set. At the time, I reviewed the docket and discovered no other party had served a Request for Copies for the turnover report (meaning no other party had the turnover report because they failed to request copies). I knew I had a valid basis for a motion for summary judgment based on the statute of limitations, and that preparation was key to have the liability expert agree that the conditions he observed were the exact conditions outlined in the turnover report.
At the deposition, it was imperative to ask specific questions that called for “yes” or “no” answers. The question structure was important because it served as a cornerstone of the motion for summary judgment as to whether the condominium association was on notice of the defects at turnover. Ultimately, the motion was granted, and the question structure from the deposition testimony helped with the favorable outcome.
I believe a general rule in question structure is to avoid compound questions. For many fact witnesses, depositions are rare events, and you will need to explain the deposition process. I think a proper deposition explanation to the first-time fact witness is important and often overlooked. Below is a real exchange from a fact witness’s first deposition:
Question: If at any time you need a break, let us know. It’s not an endurance contest. The only exception of that is [if] I’ve asked you or anyone else has asked you a question, I would ask that you answer it before you take a break unless you believe that doing so would reveal some confidence between you and your attorney, then you’re allowed to take a break to talk to him about that. You may also hear objections from the other attorneys and unless instructed not to answer by your attorney, I need to you to answer the best you can. Do you understand that you are testifying here under oath just like you would be in a courtroom?
Answer: I do.
Which question did the deponent answer? Compound questions muddy the transcript. At trial, imagine trying to impeach the deponent:
Question: “You remember testifying under oath at deposition?”
Answer: “Not really, I remember acknowledging I could take a break. I didn’t fully understand the part about the oath since we were not in a courtroom.”
The best tactic is to ask single questions with “Do you understand?” or “Is that clear?” Example:
Question: “Do you understand you’ve sworn to tell the truth today?”
It would be hard for the deponent to argue that she did not understand she was under oath. Compound questions may also haunt you when filing for a motion for summary judgment. Your client will be unhappy if the motion were denied because the witness thought they were answering one part of the compound question and not the part that would have won the motion.
If possible, request to take as many depositions as you can to improve your techniques. Also, learn from the mistakes of others—if you could not follow a line of questioning in a deposition, review the transcript and avoid similar mistakes. Overall, preparation and question structure are elemental to achieve successful methods and habits for depositions.
Benjamin W. Dowers is a partner with Gunther Legal, PLLC in Fort Lauderdale, Florida, and is licensed in both Texas and Florida. Ben is board-certified in construction law by the Florida Bar, and mainly practices construction law, commercial litigation, and admiralty and maritime law.