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.

Even with the best preparation, conducting a deposition can cause more anxiety than you anticipate. But if you don’t maintain control and cover the necessary points, you won’t get the information you need.

For most of us, the number one thing that causes anxiety during depositions is opposing counsels’ conduct. Whether it’s their questions or comments in the middle of your examination, or objections to your questions, you may feel that the voice of another lawyer obligates you to respond. But when that happens, you begin to lose control of the deposition—and you give the deponent an unwarranted break.  

Don’t interrupt your examination to engage in any on-the-record discussions about your questions—such as whether one is clear, asked and answered, or irrelevant. When opposing counsel objects or interrupts, don’t comment other than to tell the witness, “You may go ahead and answer.” Keep your eyes on the witness, and do not make eye contact with opposing counsel. 

Remember, depositions are not motion practice. There is no judge in the room to rule on the opposing counsel’s objections and conduct—or your response. So if a discovery dispute is brewing, don’t create a record of repeated back and forth between you and opposing counsel. Simply continue with your questions. 

A second aspect that can affect your ability to maintain control is an unexpectedly evasive witness. For example, the witness could stall with responses such as “I don’t understand your question” or “What do you mean by . . . .” These responses force you to second guess your question even when there was nothing wrong with it. This puts all the pressure on you and gives a witness time to consider his or her response. 

There are two keys to dealing with this kind of evasive witness. First, never give the witness time while you search for better phrasing. Instead, immediately ask a counter-question, such as “What don’t you understand about the question?” or “What does it mean to you?” Second, stay with the question and the witness until you have the information you know he or she possesses. To do so, you may have to ask the question more than once, ask the inverse of the question, or break the question down into individual facts to get the witness to commit to a position. Don’t give up. Keeping control over your deposition is critical.  

Phillip H. Miller is the founder of Miller Law Offices in Nashville. He can be reached at pmiller@seriousinjury.com.