Offensive Deposition Preparation
I have been fortunate enough to have taken and defended a variety of depositions over a decade of practice. While every case involves different legal issues and nuances, I have found three core principles underlying offensive deposition preparation to remain constant.
Know the Case and Its DocumentsExcept in relatively simple cases, depositions are usually noticed after the parties make document requests and exchange documents. To adequately prepare to take a deposition, one must be familiar and fluent with a case's pleadings, motion papers, and significant documents. Allow adequate time for review and analysis; the eve of a scheduled deposition is generally not the time to be starting this work. In addition, clients who have had no experience with depositions should be informed in advance and in writing that preparatory document review and analysis is absolutely necessary to represent their interests. As the oft-repeated saying goes in dealing with billing questions, "An ounce of prevention is worth a pound of cure."
Draft a Deposition Outline Based Upon Litigation ObjectivesRegardless of whether one is representing a plaintiff, defendant, cross-claimant, or even a non-party, the next step in preparation is the same: draft a comprehensive outline of topics for questioning based upon a written, specific list of litigation objectives ("LLO"). The LLO should be drafted with this key question constantly kept in mind: "What answers to questions at the upcoming deposition will best serve client interests?" The specific order of proposed topics for questions is something that is case-specific and a matter of attorney preference. However, generally speaking, a chronological order is preferred for two reasons: (a) because many people have an innate desire to participate in the telling of a story or narrative, a chronological order facilitates a witness "anticipating" questions before they are asked, thereby providing potentially fertile ground for additional questioning; and (b) even if a witness has been prepared to be "tight-lipped" in answering questions, the chronological order enables one later on to more easily locate answers in what often is a voluminous transcript than if the order is not used.
Prioritize Topics in Anticipating Legal ObstaclesOften, court rules, other relevant law, a bothersome opposing counsel, or practical limitations will restrict one's ability to ask questions. Know in advance--and prioritize your LLO-based questioning topics upon--whether time limitations are or will be (if more than one day of deposition practice is anticipated) an issue, whether topics are likely to draw "do not answer" instructions based upon the attorney-client privilege or prior court orders, and whether opposing counsel has a reputation for shenanigans. In this regard, while it is true that one can often obtain favorable rulings on opposing counsel "do not answer" instructions, if it takes two hours on the phone to obtain such rulings, they can come at too great a practical cost of lost time and momentum. Most of the time, it pays to simply mark "do not answer" instructions as they are given for a later application or motion to the Court for rulings or sanctions, re-prioritize questioning topics, and proceed accordingly.