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.

The rarity of trial can give us the impression that depositions are commonplace, ­low-stakes events. However, the fact that we have more depositions than trials presents a striking opportunity to up the ante. We can start by setting bigger goals for every deposition we take.

Deposition goals should always be about more than gathering facts or finding out what a witness knows. To raise the stakes, we should set some goals that are hard to accomplish and that are significant to the case’s outcome. Then we can either “win” or “lose” the deposition depending on whether we met that goal. 

First, determine the bare minimum needed on the record for the deposition not to be a total failure. Second, figure out what else you could do in the deposition that would help with liability issues and themes, defenses, juror biases, or motion practice. Third, think about what else could be accomplished. Aim high: How could you win your case right now in this deposition? 

For example, let’s say you’re deposing the defendant in a car crash case. Some low-stakes goals would be to find out what the defendant knows about the crash, if the defendant remembers how fast he or she was driving, or if the defendant admits that the plaintiff was injured at the scene.

But these high-stakes goals are much more consequential: The defendant takes full responsibility and wants the plaintiff to be fully compensated, the defendant believes the plaintiff’s claim is legitimate and reasonable, and the defendant believes the plaintiff should receive whatever he or she is asking for.

Just like trial, meeting high-stakes goals at deposition requires strategy and preparation and involves the possibility of failure. First, break each ­high-stakes goal into subparts. If the goal is to establish that the defendant believes the plaintiff’s claim is legitimate and ­reasonable, some subparts could be: 

• The defendant has no evidence or reason to believe that the plaintiff’s claim is not legitimate.
• The defendant doesn’t really know that much about the plaintiff’s claim. 
• The defendant would want the benefit of the doubt if he or she were in the plaintiff’s situation.
• The defendant feels bad about what happened.
• The defendant wants everyone to leave with a fair result.  

Second, view each of these subparts as chapter headings, and develop a series of simple one-fact questions that lead like a trail of bread crumbs to the response that achieves the subpart goal. Third, organize and string together the subparts so that in the final Q&A, the witness gives you the response you need. 

Last, always remember to be creative, don’t give up, and don’t be afraid to fail on some goals. Maybe you set five ­high-stakes goals but only accomplish one. That one is a big deal! And all anyone will remember after the deposition is the goal you accomplished, not the ones you attempted and missed.

When we set high-stakes goals for our depositions and do the preparation needed to accomplish them, three things will happen: Our cases will get much stronger, we will become better trial lawyers, and people will take notice. We are showing the defense, our clients, and our colleagues that we don’t wait until trial to be exceptional. 

J.D. Hays Jr. is an attorney at Taylor King in Springdale, Ark. He can be reached at jdhays@taylorkinglaw.com.