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.

I want to take depositions,” you say to your boss. “I worked hard to prepare for the challenge, and I am ready for ­whatever you throw at me.” New lawyers can seize opportunities to depose clients, fact witnesses, and experts if they can say these 10 things to their supervisors.

1. “I have read many deposition transcripts.”

Practice makes perfect, so practice deposition skills by analyzing the questions and methodology of other attorneys.

2. “I watched you take depositions.”

Find a mentor who will take you to depositions. Learn the facts of the case, and think about what questions you would ask. During the deposition, write some follow-up questions for your mentor. Even new lawyers might hear or notice something their mentor did not ask about.

3. “I attended a deposition skills CLE seminar.”

Both new lawyers and seasoned attorneys can benefit from this experience. At AAJ’s Advanced Depositions College, instructors will help you craft deposition questions for your current cases. You will learn tools to extract relevant information and lock witnesses into undeniable answers.

4. “I practiced asking good questions.”

Every time you ask a question, you are practicing your deposition skills. For example, when you encounter someone new in your personal or work life, you can practice by learning all you can about that person. Ask a variety of questions, but tread carefully—you might find family and friends saying, “Stop asking me questions!”

5. “I practiced being a good listener.”

Taking a good deposition is not just about asking good questions but also about listening to the witness’s answers, which might lead to other questions you had not planned to ask. Listening to audiobooks or podcasts can help hone this skill.

6. “I watched witnesses.”

There’s a reason attorneys videotape depositions. The way a witness answers questions is important to jurors. A witness’s mannerisms also may give you clues about where to probe deeper. Books on interrogation by former FBI agent Joe Navarro and psychologist Paul Ekman are helpful guides that explore what a witness’s nonverbal communication indicates about him or her.

7. “I read books on psychology and neuroscience.”

Books by renowned psychologists Robert Cialdini and Daniel Kahneman can help you understand how the human brain makes decisions and answers questions. (Read about Daniel Kahneman’s research and its application to law practice in the April 2017 issue of Trial.)

8. “I educated myself about the witness.”

Find out the witness’s knowledge, training, and experience. Has he or she testified before? For whom and about what? Determine what motivates the witness and how you can use that to get answers to your questions. Predict some of the witness’s answers and anticipate follow-up questions.

9. “I will begin with the end in mind.”

Develop a deposition plan. Every deposition serves a purpose in the overall case. Identify the admissions that are crucial and will help move your case forward. If you get even one piece of testimony that helps the end goal, you are ahead.

10. “Let me start taking depositions. The more I take, the better I’ll be.”

Emily G. Thomas is an associate at Reiter & Walsh in Bloomfield Hills, Mich. She can be reached at ethomas@abclawcenters.com.