Editor’s note: This is an edited version of an article written by Barry S. Sobel that appeared in the April 2023 edition of New Jersey Family Lawyer
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Taking depositions is arguably the single most important part of the discovery process because it is the only time lawyers can explore in real time information gathering from a witness under oath before trial. It provides lawyers (and clients) the opportunity to pursue areas of inquiry virtually unchallenged (as objections are limited) and obtain information that can then be used to better formulate strategy and arguments and pursue claims on behalf of clients at trial.
A deposition, however, is only as effective as the lawyer taking it. As a result, lawyers – especially young lawyers – must be aware of this significant responsibility so they can be properly prepared and conduct the deposition in a successful manner. Here are eight tips for young lawyers in conducting and defending depositions.
1. Be prepared. There is neither a substitute nor a time limit for proper preparation. Make sure to review all important documents so that you are not only familiar with the intricate details of those documents/assertions, but so that you are also aware of potential follow-up inquiries based on the answer proffered by the deponent. Listen to the answers given. Often, lawyers stick to their outline and, after a deponent answers a question, either asks another question or switches topic and does not follow up on the initial answer.
2. Prepare your client. Often, clients send information or documentation they are sure will help them win their deposition. Depositions, however, are not won – only lost. It only takes one answer to destroy credibility. Proper preparation not only includes reviewing documents (i.e., certifications and other court submissions), but counseling clients on how to answer questions. A deposition is not a conversation – it is a response-based inquiry. A properly prepared witness only answers the question posed and does not volunteer anything additional.
3. Be conversational. In contravention to a properly coached witness, an attorney taking a deposition should be conversational, not argumentative – that time is for trial – and try to facilitate opportunities to enable the witness to talk. A successful deposition casts a wide net. One of the best ways to accomplish this is to ask open-ended questions, such as, “What happened next?” Lawyers should get a full chronology of events and ask about others who may have been present.
4. Close the loop: The purpose of a deposition is to obtain information – all information. Too often, lawyers forget to close the loop – which then allows an opportunity for a witness to modify/add to their prior deposition testimony at trial. Lawyers must close the loop, so they are not surprised at trial with additional information. In response to an inquiry, ask the witness whether they can recall anything else. Keep asking/repeating until the witness confirms that they cannot recall anything else.
5. No notetaking: The deposition is already recorded – either via written transcript, video, or both. Therefore, there is no need to write down the answers to your questions. Rather than scribing the answers, pay attention to the answers given, as it may spur additional inquiry not previously contemplated. If you want to hear a specific answer again, ask the reporter to repeat it.
6. Adapt to technology: COVID-19 forced the practice of law to (somewhat) advance into the 20th century. Depositions now occur (mostly) by Zoom. Lawyers must know how to use Zoom – and/or other video-based deposition platforms – and get familiar with all provided features to make the experience is as close to in person as possible. This is especially true if you are presenting the witness with documents/exhibits, as you do not want to waste time having to repeatedly break the deposition to email the documents.
7. Follow up: At deposition, lawyers may request documents in response to an answer from the witness. That request, however, must be followed up by a formal written request. Too often, young lawyers forget to close the loop and follow up on their request for documents. Moreover, although commonly miscategorized as written discovery requests, requests for admissions are a useful tool to use after information is uncovered at a deposition.
8. Objections: Be prepared to deal with objections – specifically improper objections. Pursuant to R. 4:14-3(c), the only objections permitted during a deposition are to form, to assert a privilege, or to assert a right of confidentiality or limitation pursuant to a previously entered court order. When taking a deposition and your adversary makes an improper objection, put it on the record, explaining why the objection was improper (citing R. 4:1403(c)), instruct them to avoid making subsequent improper objections, and inform them that if additional improper objections are made, you are permitted to (and likely will) pause the deposition and contact the court to obtain assistance in dealing with the improper objections.