Deposition Preparation: Best Practices
An essential step in the discovery process, deposition is a testimony given under oath and recorded in writing by a court-authorized official, usually outside of court and before the trial. The "deponent" is the witness who is being cross-examined.
One of the most effective legal resources available to a party in a trial in the United States is a deposition. The majority of civil lawsuits are decided during depositions rather than in court. Experienced counsel, analyzing a deposition transcript, can typically foresee the likely outcome of a trial and can offer proposals for settlement appropriately.
Particularly in civil courts, depositions are a crucial part of any case. Even seasoned lawyers must plan in advance to offer their clients the best representation possible. It can be exceedingly challenging to remember complex tactics and ideas. The golden guideline to keep in mind is that depositions always require planning ahead of time. In the session room, attorneys typically spend three hours for every hour of work. So, giving yourself plenty of time to prepare well before making an appearance is compelling.
The Army teaches you how to properly put on your parachute, jump out of an airplane, use your equipment while in the air, and land safely. Nothing fully gets you ready to leap out of an airplane door for the first time while you're 1,200 feet in the air, despite all of this training.
Similarly, getting ready for a deposition takes considerable work. You might not feel completely ready to take a deposition despite all of your preparation. But don't worry. Our best practices for deposition have you covered and will assist you to deliver an effective deposition should you ever be required to do so.
Here are very simple tips for deposition preparation that you'll be able to put to use right away. Let's get going!
1. Competency of Witnesses
According to California Evidence Code Section 702, "the evidence of a witness concerning a particular issue is inadmissible unless he has firsthand knowledge of the matter" for percipient witnesses. A foundation demonstrating the witness' firsthand knowledge is required before the witness is allowed to testify. Personal knowledge is frequently overlooked in terms of importance. The difference between knowing something to be real and believing it to be true.
A quick funny example! - Consider the earth. If asked, the majority of witnesses won't be reluctant to confirm that the earth is round. Everyone is aware of that. However, most witnesses struggle when asked to name any personal information that might have contributed to their understanding. They might have heard or read in books that the earth is round while they were in school (which accounts for hearsay). Most likely, they have seen images of the earth shot from space. However, as they have never traveled to space, those witnesses are unable to validate the images.
2. Authentication of Documents
Even though document authentication is easy and normally takes a few seconds, lawyers frequently make mistakes when doing the task. This can lead to significant issues during summary judgement or trial. According to California Evidence Code 1400, authentication must either "(a) be established by the introduction of evidence sufficient to justify a conclusion that the writing is what the proponent of the evidence asserts it is, or (b) be established by any other means authorized by law." In other words, the proponent must provide enough proof to establish a conclusion by a majority of the evidence. 83 Cal. App. 4th, People v. Herrera, 46, 61 (2000).
3. Outlines can be Tricky
In order to cover all the subjects you need to discuss during your session, you typically construct an outline. A solid outline gives your deposition shape and guarantees that you don't forget anything.
However, knowledgeable attorneys advise against writing questions. Naturally, you want to appear knowledgeable by asking ready-made questions, but there is a risk in doing so. There may be a desire to read out your next question rather than hearing the witness' response and then asking a follow-up question. Such a tactic avoids engaging in in-depth questioning and leaves out many inquiries that might be made immediately.
Lawyers with experience advise creating a brief synopsis as opposed to detailed queries. For example, instead of writing "What time did you meet Mr. Jones?", you'd better jot down "time: Mr. Jones: meeting". Without worrying about missing anything, you can frame the inquiry however you wish during the session.
Despite this, you must not disregard outlines. During the deposition, you might take a break to make sure you have covered everything. It's possible that you got lost in the interview's natural flow and missed some crucial details. It is wise to take a pause and look over the outline.
4. Research and Read
Make sure to read before you begin to formulate your outline and questions. You must be aware of the "essential" papers and important legal principles that will be used throughout the trial. You can jot down notes as you read the materials on any objections the opposition might make to them. Comprehending the case's facts is very crucial. When you demonstrate your familiarity with the case throughout the deposition, you can prevent the witness from misleading you. For instance, you could inquire, "Did you work at a law firm, Mr. Smith?" in place of, "Where did you work?" If Mr. Smith sees that you are informed of the facts, he will be less likely to avoid giving you the answers.
5. Keep your cool
The opposing lawyer could pose queries that appear foolish or irrelevant. The best thing a witness can do is maintain composure and respond to every question with candour and consideration. You have the right to take a pause if a topic of the questions makes you uncomfortable or if you're unsure of how to respond. Talk to your attorney at the intermission about the problems or the best way to deliver your testimony.
6. Exception for Business Records
The justification for the business records' exception is dependability (and many other hearsay exceptions). There is a good chance that certain documents are reliable enough to be presented in court if a company uses them in its regular operations. On the other hand, a record is understandably less reliable if it was made particularly for a party to utilize in court.
7. The Attorney-Client Privilege
There is no limit to the attorney-client privilege. Evidence protected by the attorney-client privilege may not be ordered regardless of relevance, necessity, or circumstances, unlike other exclusions that occasionally have countervailing policies. The attorney-client privilege is sacred, but lawyers who are defending their clients in depositions sometimes have the predisposition to apply it in ways that are not allowed. Lawyers may advise clients to withhold information about the procedures they took to find legal representation.
The exclusionary rule of hearsay has so many exceptions that, while memorization of the rule and its exceptions (and the specifics of each exception) is required, it is insufficient to apply the rule successfully in the fast-paced environment of depositions or trials.
Practitioners may make a mistake by failing to carefully evaluate hearsay during depositions because hearsay objections are only allowed at trial. However, depositions are frequently where parties can lay the necessary groundwork to determine if an exception to the hearsay rule applies (or does not). Such testimony may be of the utmost significance both during the course of the trial and when the court reviews numerous hearsay objections in motions in limine.
9. Never be too Confident
Use terms like "never" and "always" sparingly. Such statements are overly conclusive and could make others doubt your trustworthiness if the assertions they support are later shown to be untrue.
10. Don't Get Distracted
One of the essential components of a successful deposition is avoiding distractions. You need to first be clear on your destination in order to prevent getting sidetracked. Think over your deposition's outline and keep in mind the facts you want to prove. Once you feel you have all the information you require, you should stop asking questions.
Young lawyers may lose focus on their overall strategy if the witness provides false information. If the witness has made false assertions, you must resist the urge to correct or educate them. Ask some more clarifying questions instead, and encourage the witness to go into more detail about the misleading statement for the record. At trial, you will have the chance to contest their testimony and present arguments in opposition.
No matter the type of challenge, learning and preparation is critically important to success. Many people find taking a deposition to be a major shock, especially if they have no past experience with litigation. Speaking with them and outlining the discovery process, as well as the deposition itself, is a smart idea. Tell them they will be put under oath and that you expect them to tell the truth. We hope this was a good read for any potential deposition that you may need to face in the future. If you have any questions, please contact us.