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The newsletter of the ISBA’s Young Lawyers Division

August 2014, vol. 59, no. 1

The inside scoop on dep prep to get you through your first deposition

A deposition can be one of the most daunting events that new lawyers face. While most of us get the hang of basic deposition skills after a few tries, that doesn’t lessen the anxiety caused by that first deposition. After practicing asbestos litigation at Simmons Hanly Conroy, formerly the Simmons Firm, for the past six years, I can promise that depositions do get easier with experience.

My practice is focused on asbestos litigation, representing victims of mesothelioma, a rare and deadly form of cancer. I take depositions of my clients, their family members, coworkers and corporate representatives on a regular basis. As an added pressure, many of my clients are seriously ill and it’s not uncommon for them to pass away before their trial date. As a result, making sure their depositions go as smoothly as possible is even more important because it could serve as the testimony for a jury if the case should go to trial.

Over the years, I’ve developed a few guidelines to help me as I’m preparing for my own depositions. Take them into consideration as you work to prepare your first deposition and beyond.

Preparation is key to success:

• You must understand the purpose of your deposition. When getting ready for a deposition, I always make a list of topics to be addressed. While you may feel more secure typing out each question and reading from a script, that approach will inhibit your ability to be flexible and follow up on significant details. My practice is to make an outline of the information I need to cover. I then cross items off as they are discussed and can jot down written notes in the outline on where I need to follow up. This process allows me to give my attention to the witness’s testimony and then expound on what is said rather than jumping back into my prepared questions and neglecting important points that arise.

• If you are taking a controlled witness deposition, make sure you have spent enough time with your witness, explained the process and are familiar with their anticipated testimony. You don’t want to be surprised at the deposition. This will also make the witness more comfortable the day of the deposition. If possible, the deposition should take place at your office, or your witness’ office or home. You both will feel more comfortable on your own turf.

• Read depositions taken or defended by colleagues you respect and ask to observe a deposition or two. If a more seasoned colleague is willing, ask them to role play with you before your deposition. Suggest that they throw you some curve balls, like unfavorable responses or imitating contentious behavior so you can get some practice with unexpected difficulties. Anticipate potential issues and have a plan for dealing with them.

• Arrive at the deposition early to get comfortable and make sure everything is ready to go on time.

Know the governing rules

• Be familiar with the rules that govern your deposition. For example, if your case is filed in Illinois State Court, read through the Illinois Rules of Civil Procedure, especially Rules 201-224 on discovery and depositions. If your case is filed in Federal Court, brush up on the Federal Rules of Civil Procedure.

• Be aware that many courts have local rules and standing orders that address the deposition process. It is very important to know these rules. I often bring a copy of the standing order that governs many of my cases to depositions in the event a dispute arises. Once in a great while, a disagreement may require the immediate intervention of the Judge assigned to your case. It is beneficial to know whether your Judge is agreeable to being called during a deposition. If so, keep the phone number handy just in case.

• Whether it is proper to communicate with your witness during a deposition, breaks, and recesses also depends on the jurisdiction. Take a look at Murray v. Nationwide Better Health, No. 10-3262, 2012 WL 3683397 (C.D. Ill. Aug. 24, 2012) for guidance from the Central District of Illinois.


• Sometimes opposing counsel will ask if you agree to the usual stipulations. Always identify what those stipulations are on the record. In my area of practice, the usual stipulations include an objection by one is good for all, and all objections except as to form are preserved.

• In Illinois depositions, you must object to the form of a question at the deposition; otherwise your objection is waived. see Ill. R.Civ. P. 211. Take note of opposing counsel’s form objections. If they have a good point, go ahead and correct your question. This will make a better record.

• The same goes for objections regarding attorney/client privilege; if you do not make the objection at the deposition, you risk waiving the privilege. This omission can have serious consequences. When in doubt, make an objection and instruct your client not to answer the question.

• Most jurisdictions, including Illinois, prohibit speaking objections. see Ill. R.Civ. P. 206(b)(3). You may encounter opposing counsel who uses this tactic to coach a witness or to disrupt the deposition process. No matter what happens, try to stay calm and focused on the task at hand. If necessary, verbally describe the inappropriate conduct for the record. This will usually put a stop to the behavior. You may file a sanctions motion after the deposition if the behavior continues and is truly egregious, although this is a remedy you should use very sparingly.

• If opposing counsel baselessly directs a witness to not answer a question, ask the Court Reporter to certify the question and continue on with the deposition. Again, you may file a motion on this issue after the deposition.

• Testimony comes out quickly and you don’t have a lot of time to react, so it can be helpful to bring a list of common deposition objections with you.

A law school professor gave some good advice that sticks with me: your opponent may be more experienced, have attended a better law school, or work for a silk-stocking firm, but the one thing you can always do is out-prepare them. So, take the time to be fully prepared and you can rest assured you have done everything you can to set the stage for a successful deposition.

Good luck! ■