6 Ways To Assert Control for the Young Lawyer to Master Depositions

Today, I want to share 6 tips for asserting control at your next deposition that will help you master depositions as a young lawyer. It is important to remember that you control the deposition, from the time to the sequence of questioning; it is your deposition, so assert control over it and do not let the opposing counsel keep you from accomplishing your ultimate goal in the deposition, whether that goal is to tie a witness down to a story or to discover their defenses.



#1) The most important tip is that you must be flexible in a deposition. Outlines are great for deposition preparation, but you should not be fixated on going through the outline exactly as written. You never know what the witness is going to say. You can definitely anticipate the witness' answers, but there is no guarantee you will hear what you anticipated or what you wanted to hear. You must be ready to change it up and ask follow up questions based on their answers. I know this seems like a no brainer but often times, lawyers can become too focused on their deposition outline for fear of leaving out a question. Whether you are changing up the speed, the order of the questions, answering or refusing to answer questions, you have to be ready to take action on the fly.



To become an effective examiner, you must master the art of listening to the witness' answer your questions and then changing course to follow up with an unplanned question. You do not want to lose sight of the importance of asking good follow up questions. If the witness leads you on a tangent, follow the tangent. Remember, your outline is just a rough draft,an approximation of what may occur at the deposition. Do not be afraid to throw it out the window.



#2) It is okay to ignore your opponent, and you should choose to do so. Often times, opposing counsel makes objections merely to throw you off stride and be nothing more than a nuisance. It is okay to ignore them. The opposing counsel may make a valid objection as to the form of the question requiring you to rephrase the question but other than that, you can choose to ignore opposing counsel and proceed with your questions. The witness is required to answer your questions, regardless of the opposing counsel's objections. Sometimes the other lawyer may sigh every time you ask a question, signaling that you are boring them, or you shouldn't ask that question. Ignore the "tantrum." Don't ask the court reporter to reflect the sigh in the record. Just keep asking your questions and soon enough the tantrum will stop. Remember, a judge will ultimately rule on any objections but not at the depo. You have a right to ask the questions, and the witness needs to answer. Sighing, objecting, and asking you questions are just tactics attorneys will use to distract you from your questioning. Assert control over YOUR deposition, don't let opposing counsel assert control over YOUR deposition.



#3) Ask questions. This seems obvious since that is what a deposition is for, for you to ask the witness questions. Don't forget that is a huge advantage you have over opposing counsel and the witness. You get to ask the questions and the witness must answer. The witness is not there to ask you questions, although the witnesses may try. Assert control by deciding how to answer or whether to answer. Often the witness may just be confused, and you can answer the question but it is your choice. You are the one who should be asking the questions.



#4) Control the order of the questions. Most of us go into a deposition with an outline, which is a good practice because it means you prepared. However, there is also a risk of having an outline - thinking you have to follow it. You DON'T. In fact, you shouldn't because that means you are not asserting control over the deposition. You must be FLEXIBLE. It is important to keep your goals in mind, but you can assert control by mixing things up. Most of us meet with our clients/witnesses before a deposition and let the witness know how a deposition will proceed. Lawyers are generally predictable. The opposing counsel has probably told your witness that you will start with preliminary questions like name, marital status, number of children, work history, etc. then move into the more difficult questions.



Instead, try starting with the hard questions, the most important issues. You can always go back to the preliminary questions. This will likely make the witness feel uncomfortable but it will also have the witness questioning what his own attorney told him about the deposition when they met. Start first with one of the most important issues then circle back to the preliminaries. That is good because you want the witness to quickly forget advice the witness received from his lawyer about not offering more information than asked and sticking to one word answers. You will need to untrain the witness as you ask him questions.



#5) Assert control by controlling the speed of the questioning. If it seems like a doctor (or other witness) is in a hurry and is being uncooperative and evasive or using jargon that is off point, slow down the questioning. Start asking questions about information that has already been covered but left behind. The message will be clear: Waste my time, and I will waste yours. The doctors usually get the point rather quickly, and the lawyer has shown his control over the deposition.



As the lawyer taking the depo, you control the clock. Not only can you slow it down, but you can speed it up. Ask questions so quickly that the witness won't be able to guess where you are going next. It is easier to ask questions quickly than answer questions quickly and this method allows you to catch witnesses off guard. If the witness rambles on about something you didn't ask, you can of course let them, hoping that they will offer useful information, but you can also interrupt them and ask another question. You control the deposition. Don't be afraid to interrupt if the witness is answering a question you didn't ask.

Since you control the clock, you can take all the time you need. At the end for example, it is okay to take time to look through your notes to ensure you did not miss a question you wanted to cover. If the other lawyer attempts to rush you, refer back to tip #2 and ignore opposing counsel.



#6) Be confident about your abilities. Experience helps build confidence but the most important confidence builder is knowing the rules and procedures that govern your deposition, which can differ depending on your jurisdiction. It is your responsibility to know the rules, and you should take the time to do so in case things do not go as you planned during the deposition. You should always be familiar with the procedure for seeking court intervention if that becomes necessary. Although it usually does not, you want to be familiar with the magic phrases and words that you need to put on the record should that become relevant down the road.



You should also critique your performance after a deposition, especially the first 100. Keep a journal with the case name, witness name, notes of what you learned and mistakes you made, notes about the strategies the other lawyer employed and what you liked or did not like about his strategies. It is essential to have an open mind and willingness to learn from experienced attorneys.



Conclusion: Remember that you control the deposition. Do not fail to accomplish your deposition goals by being outmaneuvered by the other side. If you fail, it is probably not due to a lack of experience or poor planning; rather, it is because you failed to assert control over YOUR DEPOSITION.

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