"Let Me Ask You This": Techniques and Strategies in Deposing

By Maslanka, Michael | The Review of Litigation, Spring 2019 | Go to article overview

"Let Me Ask You This": Techniques and Strategies in Deposing


Maslanka, Michael, The Review of Litigation


Introduction.356

The Fourteen Fundamental Principles for Taking a Deposition.356

Fundamental Principle No. 1: The Five W's Are Graded An F .356

Fundamental Principle No. 2: Start Planning Trial Narratives Before Ever Taking a Deposition.357

Fundamental Principle No. 3: Embrace "The Prophylactic Effect".358

Fundamental Principle No. 4: Always Start Strategically.... 359

Fundamental Principle No. 5: Manage the Bleeders.360

Fundamental Principle No. 6: A Deposition is a Terrible Thing to Waste.361

Fundamental Principle No. 7: ABN: "Always Be Negotiating" (In a firm and commanding voice at times).362

Fundamental Principle No. 8: Get A Commitment.364

Fundamental Principle No. 9: Make It Memorable.365

Fundamental Principle No. 10: There are "magic bullet" questions. Use them sparingly.366

Fundamental Principle No. 11: Be Surgical in Your Language .367

Fundamental Principle No. 12: Keep Control by Losing Control.368

Fundamental Principle No. 13: Know What Not to Do.368

Fundamental Principle No. 14: End with Two Messages .... 369

Four Fundamental Principles of Preparing a Witness to Be Deposed.370

Fundamental Principle No. 1: The Best Prep Is Empathetic Prep.370

Fundamental Principle No. 2: You Can't Change People, You Can Only Help People.370

Fundamental Principle No. 3: Answer The Question, Then Explain.371

Fundamental Principle No. 4: Arm the Deponent With A Message System.371

Conclusion.371

Introduction

Timeless question: is effective deposing (and preparing a witness to be deposed) a natural skill or a learned art? Hands down, a learned art. Too often lawyers-especially newly minted ones- despair at becoming the skillful questioner, masterful advocate, insightful strategist. This article is designed to liberate lawyers (and law students) from being held hostage to the false belief of inborn skill. It aims to lay a foundation of strategies and techniques for a lifetime of fulfilling lawyering. Its goal is to install an operating system that can be customized to a lawyer's own style and personality so that the lawyer evolves and adapts into the very best version of himself or herself. No "Mini-Me's" need apply. Here then are Fundamental Principles to reach that goal.

The Fourteen Fundamental Principles for Taking a Deposition

Fundamental Principle No. I: The Five W's Are Graded An F

Early in my career, a junior partner remarked, in sending me to take a deposition, that "it's hard to mess up a deposition; just get the Who, the What, the Why, the When, and the Where, then we will be golden." Well, no, not really. While all people are created equal, not all facts are created equal. The deposition dealt with our opposition to a Motion to Transfer Venue. Before deposing, I studied the case law on venue, asking questions based on the case law (and hopefully getting answers) consistent with our goal. Never conflate a factual investigation (yes, one role of a deposition but certainly not the only role) with pinning a witness down to a specific answer that you need to elicit whether for a response to a venue transfer motion, summary judgment motion, motion in limine, or for impeachment.

Think, then question.

Fundamental Principle No. 2: Start Planning Trial Narratives Before Ever Taking a Deposition

This principle is a cousin to the first. Lawyers tend to think sequentially: file (or answer) lawsuit; conduct depositions; file motions; attempt settlement; prepare trial narrative and draft opening; go to trial. Yes, to think sequentially is all so human but all so wrong. In fact, the narrative and opening should come first or second on this list. Why? The possible narratives at trial shape the deposition questions, not the other way around. Yet again, why sticking to the Five W's is what earns an F. So before deposing, check the model jury charges for your case whether representing a plaintiff or a defendant. …

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