Trial Magazine

Learning the art of taking and defending depositions is a fundamental skill every trial lawyer must master. It requires persistence, patience, and—most of all—practice. In the following pieces, new and experienced attorneys weigh in on what they’ve learned, what they wish they had known, and how they continue to hone their skills. From ways to get more deposition experience to a guide on prepping your client, here’s some advice no attorney should miss.

My first deposition was a Rule 30(b)(6) deposition of a United Airlines representative. I had been in civil trial work for all of five months; I was intimidated. As fate would have it, AAJ’s Advanced Depositions College was being held two weeks beforehand.¹ The skills and confidence I acquired over those three days were invaluable—I walked into that deposition knowing how to handle objections, how to respond to instructions not to answer, how to use case law to support my positions, and other techniques. Still, it was my first deposition.

When I walked into the deposition, defense counsel handed me a list of objections to half of my areas of inquiry. He informed me that the witness would not be addressing any of the objected-to areas. I was caught off guard and unsure of how to respond. I knew that he should have moved for a protective order objecting to the notice, instead of handing me written objections the morning of the deposition. When I stated as much, defense counsel shrugged me off, said “This is always how it’s done,” and told me that I could file a motion to compel if I disagreed. 

That’s the thing about depositions—even with all that preparation and training, you can’t always plan for the unexpected. And although I knew this was improper procedure, it was my word against someone with 30 years more experience. I knew enough, however, to make a record and adjourn the deposition at the conclusion. 

During the deposition, defense counsel repeatedly objected, stating that he didn’t understand my carefully worded questions. But it is up to the witness, and only the witness, to decide whether he or she understands a question. I cited to Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), and requested that defense counsel refrain from making suggestive comments in front of the witness. In response, defense counsel stated he had the right to understand my question, noting that I had failed to cite any Colorado case law. But it worked—he knocked it off. 

My first deposition taught me several lessons. First, anticipate that defense counsel (especially experienced attorneys) may try to bully you and take advantage of any uncertainty. Don’t be discouraged, and don’t engage with opposing counsel—it doesn’t work. Keep in mind that this is your deposition, not defense counsel’s—you are the one in control. Second, keep a binder of organized case law and rules to support any objections and address issues that may arise. Citing to the law is a powerful way to maintain control of your deposition. Finally, take advantage of books written by plaintiff attorneys on the subject.²

Amanda Francis is an associate at Fuicelli & Lee in Denver. She can be reached at afrancis@coloradoinjurylaw.com.

Note

1. AAJ’s Deposition College will take place Sept. 13–15 in Portland, Ore. AAJ’s Advanced Depositions College will take place Jan. 12–15, 2018, in New Orleans. For more information, visit www.justice.org/CLE or call (800) 622-1791 or (202) 965-3500, ext. 8612.
2. My two favorites are Phillip H. Miller & Paul J. Scoptur, Advanced Depositions Strategy & Practice (AAJ Press/Trial Guides 2013) and Mark Kosieradzki, Using 30(b)(6) to Win Your Case (Trial Guides 2016).