SUCCESSFUL FIRST
DEPOSITIONS
The Rules
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TRCP 176 : Basic oral depos
TRCP 199: Basic oral depos
TRCP 200: DWQ
TRCP 201: Depos in foreign
jurisdictions
• TRCP 202: Depo before suit or to
investigate
Introduction to
Depositions
• Oral deposition is a question and
answer session where the witness is
under oath.
• Deposition: Critical because you get
to ask questions, interact with the
witness, increase or decrease
credibility of the witness, obtain
admissions against interest, befriend
or intimidate the witness
Strategic
Considerations
• Expert or lay witness?
• Subpeona Duces Tecum?
• Make an early determination: Do you
want to make a friend or an enemy or
both?
• ***BE CAREFUL: you never know
when you might need the witness as
a friend – you may want to settle with
them.
Be Nice - First
• Get what you can by being nice
and then get tougher
• After all you might be perceived
as a jerk, or worse, as a ‘typical’
lawyer
Example: Decisions
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Are you preserving evidence?
Attacking a potential enemy:?
Discrediting a witness?
Testing a theory?
Video or not?
Telephonic or not?
Stenographic or not?
Decisions
• Where? Location can be
supportive or intimidating
• When? Before or after written
discovery?
• Early in the morning, midday,
afternoon or night?
• Need a translator?
Scheduling
• How to reach agreement with
the other side:
– Call and ask, follow up with a letter
– No response – send notice and
expect Motion to Quash
– Order of deposition: who should be
deposed first? THE ONE WHO
GOES FIRST GETS COMMITTED TO
A POSITION FIRST.
Tactics
• Agreements at beginning of
deposition
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No interruptions
Turn off phone/pager
What is the truth
Verbal responses only
Uh-huh conundrum
Tactics
• Will assume you understood all of my
questions unless you say otherwise
• This is a process for gathering
information
and I need your help
Any reason you can’t tell the truth
today?
Health, medication, personal
tragedy?
BTW
• Who pays for the deposition?
• The first to ask a question
Valid Objections
• Objection, form
• Objection, leading
• Objection, non-responsive
Need to prove up
documents?
• See business records exception
to the hearsay rule
• Be able to prove up business
records for admission over
hearsay objection
More…
• Lead where you can
• Control the witness
– and the flow
– and the opposing counsel
Sneaky Stuff
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Wastebasket
Seating
Order coffee, soft drink
Friendship with court reporter
Select court reporter
Observe witness/lawyer interaction
Observe nonverbal communication
EXPERT DEPOSITIONS
Things you should know:
• 1. They are smarter than you are.
• 2. They usually think they are
smarter than you are.
• 3. Pride goes before a fall
• 4. Experts often don’t know facts of
the case as well as you or your
witness
• 5. Juries are suspicious of testimony
that is paid for
• 6. Experts must decide what
facts to use and what facts to
ignore in order to come up with
a theory. They often try to steal
their way into the jury box by
telling the jury what facts to
believe. (To arrive at that
conclusion, you had to ignore
the fact that…)
• 7. They don’t get to ask the
questions, only answer them
(They will try to change your
questions because that is how
you keep control.)
• 8. Seek admissions of
reasonable propositions from
the expert. Know that they will
often fight you on minor
technical points, then they lose
credibility by failing to concede
that which is obvious or
reasonable.
Example: Unpredictable
Approach
• Q. Please state you name for the
record.
• A. Wilbur H. Wolf.
• Q. What is your address?
• A. 225 Carnivore Lane, Capital City.
• Q. Mr. Wolf, on the morning the the
fifth, you tried to eat Little Red
Riding Hood, didn’t you?
• A. No.
• Q. What did you do when you
first awoke on the 5th, Mr. Wolf.
• A. Discussion of activities
• Q. Mr. Wolf, let me show you
Exhibit 6. It’s an email you
wrote to Mrs. Wolf on the
morning of the 4th?
• A. Yes.
• Q. It ways you are going to eat
Little Red Riding Hood, doesn’t?
Probing for Details
• Remember to ask: who, what, where,
when, why and how.
• The April 16, 2001 letter
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Who wrote it?[deponent]
Where were you at the time?
When did you write it?
Why did you write it?
What did you mean at the bottom of page
one
– Remember – if you ask did you write the
letter, the party can just say no – not
much help.
Probing: Example 2
• Q. Mr. Wolf, what is your age?
• A. No, or at the time I tried to eat
Little Red Riding Hood?
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Q. Now.
A. 26
Q. How much education do you have.
(Don’t miss a promising line of
testimony)