10 Tips for Your Next Deposition

I've found the following 10 tips helpful to secure favorable admissions at deposition.

1.The funnel system. Approach your questioning like pouring water in a funnel. You start with broad, open-ended questions, followed by more narrow, detailed-based questions, concluding with leading, narrow questions. From the large opening of the funnel down to the narrow portion of the funnel you are closing doors along the way, committing the witness to certain facts and admissions and concluding on your terms. By going from broad to specific you've closed any escape hatches and have locked in the witness to her answers, preventing her from escaping an admission at trial.

2.Whenever appropriate, ask leading questions. You want to ask short, succinct questions where the witness agrees with you and says "yes." These questions and answers are devastating at trial for impeachment.

3. When a witnesses refuses to give you an inch, see if you can lead him to the absurd. Sometimes you'll have a witness who won't answer "yes" to questions that demands a "yes." When this happens, ask the most basic, simplistic, obvious questions that any juror would expect any witness to say "yes" too. Nothing undermines credibility more than denying the obvious such as denying the sun rises in the east and sets in the west.

4. Visualize trial impeachment. You want the questions and answers to go the way you want to read them at trial to impeach. Short, succinct questions, one fact per question, with each question building on the last and diving into the next. Think impeachment as you ask each question in deposition.

5. Don't ask meaningless questions. Why are you asking a given question? You don't know? Then don't ask it. It's tempting to ask a lot of open-ended, generic questions to secure more information, but to what end? You're not getting paid by the question.

6. If you want to beat Bobby Fischer, don't play him in chess. This is a favorite saying of our managing partner Spencer Silverglate, and he's right. I'm never going to know more medicine than a surgeon, more math than an engineer or more statistics than a epidemiologist. So I don't play them at their game. I make them play mine. I get them to admit irrefutable facts and assumptions, have them agree to statements they've made in publications that undermine their current opinions, and I get them to agree with me on issues any juror can understand without a Ph.D.

7. Parrot the jury instructions. You want to ask questions that make witnesses mimic the words, concepts and ideas found in the jury instructions. You'll remind the jury of these statements during closing.

8.Be L.A. Law. Jurors want Law and Order cross examination, L.A. Law cross examination and The Practice cross examination. Do some of that at deposition. Show some attitude, be clever at times, introduce some body language and do some performance art. Sometimes you'll create a moment where the witness himself will wonder what hit him. Sometimes I'll get up, and put my whole body into it, and really feel the moment. You're going to do this at trial. Why not warm up at deposition, even if it's just for a few questions or a line of questioning? This approach works best with independent witnesses who want to get into the act and get lost in the emotion you're creating and will agree to go where you take them because they want to perform alongside of you.

9. It's a tug of war. I don't care how long you've been deposing a witness, how tired you are, how hungry you are, what the traffic will be like or how inpatient everyone in the deposition room is getting. You and the witness are holding the opposite ends of a rope, grabbing tight and pulling. If you let up, even a bit, the witness pulls the rope in his direction. You are there to get the truth, to get admissions and to lay the foundation to win your case. Don't let up on the rope.

10. Get the other side to put their guard down. I don't wear suits to depositions. I bring my documents in a banker's box. I make a point to come across a bit disheveled, a bit underwhelming. I engage in self deprecating humor. I don't take myself too seriously and I check the ego at the door. You would think a golden retriever was cross examining you. And once the rhythm is going, and the witness, often unawares, is making one admission after the other, and the attorney across from me is realizing I'm not so innocent, or naive or dumb, well by then folks, it's too late. Golden retrievers bite too, especially rabid ones.

So there you have it. My 10 tips. This is where I should stop to search for a cool stock photo to include with this article to increase the views. But, I could care less about that so I hope you like whatever default photo gets slapped onto this piece.