Young litigators often learn the hard way just how powerful a deposition transcript can be.
When questions and answers are vague, it becomes difficult to use them in briefs and in trial preparation. On the other hand, it sometimes only takes a few sentences of clear Q&A to completely dispose of a case—whether in your client’s favor or not.
But how does a young litigator make the leap from recognizing a good deposition transcript to actually creating the record that can win the case? Whether the task is to take a deposition or to defend one, there are specific things that an experienced litigator will often do and specific goals that an experienced litigator will try to achieve. And while they may look easy on paper, the best way to improve these skills is to practice, and learn by doing.
This is the second in a series of Insights about the Kirkland & Ellis Institute for Trial Advocacy. The first Insight addressed the overall program and training on evidence.
Taking a Deposition
The key to taking a successful deposition begins with preparation, and preparation requires a thorough command of the facts, an understanding of the law, and a clear strategy for the road ahead. Once you have that, you can start focusing on the deposition at hand.
- Get organized. Every deposition should be guided by an outline. For your first few depositions, consider writing out at least your most important questions verbatim. Resist the temptation to show up with a box of disorganized documents and meander through them until time runs out.
- Have a strategy. Your questioning should be aimed at some objective. If you’re deposing a fact witness, think about what facts you will need to prove your case, and if possible, establish summary judgment. If you’re deposing an expert, know how your judge has applied Daubert or Frye in the past to identify bases for disqualification. If you’re deposing a third party who may not show up at trial, plan on the deposition being your only shot at getting testimony.
- Score points. Some of your questions will be aimed at gathering information. Use the funnel technique by starting broad and asking increasingly precise questions until all avenues have been closed out and the witness can’t change the story at trial. Other questions will be aimed at getting admissions. In order to get a clean admission that will be useful later, the question and answer both need to be clear. If you ask a clear question and get an evasive response, ask it again.
- Listen. If you were staring at your outline while the witness gave you an unexpected gem, you probably missed it and missed the opportunity for a follow-up line of questioning. Surprises are a regular feature at depositions. Always be ready to go off-script.
Defending a Deposition
Defending a deposition is often more stress-inducing than taking one. For starters, the witness is often your own client, and you don’t want to fail to impress. Moreover, there can be more downside potential to a poorly-defended deposition than a poorly-taken one.
That said, you have a much better means of preparing when you’re on the defense side, because you will be preparing with the witness—an advantage that your adversary does not have.
- Know the facts and the documents. Your own part of the prep session begins well before any witness sits down with you. Know the record cold. Get all of the key documents in one place and create an index, so that anything can be pulled out and shown to the witness in a few seconds.
- Get the witness comfortable. Many witnesses have never been questioned in a formal setting. Do mock Q&A with your witnesses in order to get them comfortable with the atmosphere and the process. Help them understand that this is not an informal conversation but an on-the-record evidence-gathering exercise. To the extent possible, show them all the key documents they’re likely to see.
- Know the rules. Does your jurisdiction have a seven-hour limit on testimony? Are conversations during the break protected by privilege? Know the answers to these questions early.
- Don’t be a potted plant or a disrupter. There’s a clear line to respect between zealous representation and being obnoxious or inappropriately coaching. While an attorney should always be respectful of professional decorum and court rules, do not leave your witness abandoned. While speaking objections are generally not permitted, a defending attorney should object to questions that are ambiguous, misleading, without foundation, or argumentative. And call for a break when your witness is feeling tired.
Learning By Doing
While these tips may seem straightforward, the best way to develop is practice. At Kirkland, all of our junior litigation associates complete a mock deposition program, where we hire professional actors to be witnesses. This experience is invaluable, and it allows them to do real depositions earlier in their careers than associates at our peer firms.
Look for similar programs from NITA or your local bar association. Or, better yet, look for opportunities to take testimony or defend witnesses for pro bono clients—whether in a deposition, an administrative hearing, or in court. By getting on your feet, you’ll master the basics and quickly move forward in your career as a litigator.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners
Atif Khawaja is a litigation partner at Kirkland & Ellis LLP in New York. He has years of experience litigating and trying cases in courts and arbitral forums across the country for businesses in a variety of industries. He is a member of Kirkland’s Litigation Training Committee.
Alexia Brancato is a litigation associate at Kirkland & Ellis LLP in New York. She focuses on complex commercial litigation in federal and state courts, including matters involving class actions, commercial disputes, contract disputes, fraud, and tort.