We all remember our first deposition. Even after years of trial advocacy classes in law school and countless transcript reviews in the infancy of being an associate, nothing compares to a young lawyer’s first deposition to present a witness with the training wheels off. Admittedly, depositions in 2023 have changed with the increase in remote proceedings, but there are still certain principles that apply to assist a young lawyer in successfully preparing for a deposition, executing the gameplan in the deposition, and then placing that deposition within the larger context of the case.
Tip #1: Identifying the Goals of the Deposition
To successfully prepare for a deposition, one must keep in mind exactly what the deposition intends to accomplish for all parties. The young lawyer needs to keep in mind that a deposition does not exist in a vacuum; it exists to either meet the burden of proof for the moving party or to allow the responding party to attack the evidence previously submitted. The burden of proof for any pending petition should be the backbone for deposition preparation.
While the burden of any petition pending sets the minimum requirements for a deposition’s goals, a young lawyer benefits from ascertaining what the theme of a case is in the context of a pending petition. Specifically, am I representing an injured worker who properly reported a workers’ compensation claim, was taken off of work by an employer-referred provider, and was then dumbfounded when her claim was denied? If so, I need to convey in her testimony how the worker completed all the required steps and has still been unjustly treated by the insurance company.
On the other side, if I am defending a worker’s entitlement to workers’ compensation benefits against an assertion that she is fully recovered, I need her testimony to depict her symptoms in the context of her treating medical provider. While young lawyers are still fond of templates and outlines as early gateways to practice, a rote outline simply listing which questions to ask for a certain petition does a disservice to their client.
2: Preparing Your Witness
When conducting a deposition, a young lawyer needs to establish from the start control of the witness. If a fact witness is testifying, it is vital to properly prepare the witness for questions that will be asked on direct exam and the likely questions to be asked on cross-exam. Preparation takes many forms depending on the witness. If a witness is generally nervous, the young lawyer needs to be a confident and calming presence. If a witness appears to be too chatty or long winded, the young lawyer cannot allow the witness to be in control. Successful preparation of a fact witness relies on connecting and establishing a relationship between the witness and counsel.
A medical witness requires similar preparation with the added twist of determining the actual level of preparation the medical witness has put into the file before testifying. Some physicians will spend hours reviewing a client’s chart and will have a comfort level on any questions about prior medical history. Other physicians may have looked at the file while running late from the operating room. Regardless, a young lawyer can ensure proper medical witness preparation by flagging any “bad” notes and “good” notes for the doctor in advance, ensuring that there will be no questions on direct or cross-exam to catch the doctor off guard. Moreover, a successful medical deposition requires the young lawyer to be in control of the doctor regardless of any practice or experience discrepancy.
3: Maintaining Decorum Within the Deposition
At some point, the young lawyer will have to present a witness in a deposition opposite an adversarial attorney with more experience. It is natural for the young lawyer to have some trepidation in these instances, but a successful deposition requires the presenting attorney to maintain control of the deposition itself regardless of the experience on the other side. There are some bad actors who utilize a deposition to intimidate witnesses, berate the other side, and seemingly put on a performance for their client that lives on in transcript form alone.
In order to combat such behavior, a young lawyer must understand the rules and practice of a deposition and remain confident in asserting the same if things go south with the other side. Not only does asserting the rules with confidence reaffirm the young lawyer’s own witness, it affirms to the judge reviewing the transcript that the young lawyer is not intimated by the other side’s bad acts. There is no need to become flustered by the opposing side’s objections or procedural complaints. Let the veteran attorney instead expose their ignorance of the procedural rules or the case itself so a reviewing court can note the same.
4: Active Listening During Cross-Exam
A properly prepared witness may still provide answers during cross-examination that need to be addressed during re-direct or a subsequent hearing. In order to ascertain what actions need to be taken following cross-exam, a young lawyer must be in tune with answers from a witness that impact the burdens of proof and themes at play. Effective notetaking during cross-exam goes beyond simple summation. Instead, the young lawyer must be engaged in actively listening to the testimony and the questions of opposing counsel to identify the opposing theme at play.
If an admission on cross-exam causes concern, it is vital to identify if this admission can be rehabbed during re-direct exam or if there will be another opportunity at a hearing or deposition to do so. With experience, a young lawyer can confirm if the witness has the ability during that same deposition to provide needed clarity or if additional preparation will be needed to address something unexpected.
5: Applying the Deposition Within the Case Context
After the deposition concludes, it is important to memorialize not just the key takeaways from the witness’ testimony but also the items that may need to be addressed as a result of the testimony. This summary does not need to be War and Peace as our firm’s managing partner Sam Pond is right to note, but instead needs to be succinct and applicable for future colleagues who may touch the file moving forward. A young lawyer does not need to transcribe a dozen pages of legal pad notes to effectively accomplish this. Instead, boiling the deposition down to a straightforward confirmation of what the goals were, how they were accomplished, whether the witness will be found credible, and what items need to be kept in mind moving forward provides a useful summary for the next attorney on the file.
These tips become second nature as the young lawyer continues to present more witnesses and handle depositions throughout their career. Effective depositions are not learned by reviewing the transcripts of veteran attorneys. A young lawyer needs to enter the arena and seek out deposition opportunities to fully learn their craft.
Daniel E. Pierson is an associate at Pond Lehocky Giordano LLP, the largest workers’ compensation and disability law firm in Pennsylvania. He can be reached at firstname.lastname@example.org.
Reprinted with permission from the March 2, 2023 edition of The Legal Intelligencer © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.