The Dangers of Winging It in Depositions

Experienced lawyers often claim they can "wing it" when it comes to depositions. They're undoubtedly right. And if they feel good about knowing that depositions don't give them butterflies anymore, it's hard to blame them for taking pride in their experience.

What are the dangers of winging it? Winging it is really nothing more than the ability to appear competent without having to prepare. While style without substance can get lots of lawyers through depositions, it doesn't add much to the case. Failing to properly prepare is not a good way to lay the foundation for trial or settlement.

Before winging your next deposition, here are some questions to ask yourself:

• What are the goals of the deposition? Are you merely gathering information or can you also get helpful admissions from the witness? How do you plan to achieve your goals?
• Do you plan to exhaust the witness's memory on certain issues? Which ones? Why those issues and not others? When you're finished, will the witness really be pinned down, or have you left some open doors for him to wiggle through later?
• Have you reviewed the pleadings? If not, why not? Have you looked at the discovery responses and documents? Which ones do you plan to use at the deposition, and why?
  
• Have you considered the way the witness might fit into your plan for trial? Have you even thought about trial? How will the witness support or detract from your legal claims or defenses?
• Have you thought about the reasons why you're asking the questions you plan to ask? Have you thought about the best way to ask those questions based on your anticipated strategies at trial?
• Have you thought about the ways you can use the deposition in motions before trial? Have you thought about the ways you'll use the deposition in other depositions? Have you thought about the ways you'll use the deposition at trial?

These questions apply no matter where you practice. In Illinois, however, where discovery depositions are limited to three hours, thorough preparation is all the more important.

Comments

[YGB]

I have a friend who recently took up woodworking as a hobby. The projects often involve the use of equipment such as the tablesaw that can easily inflict some pretty serious damage to the careless or unwary. My freond has told me that there are two groups most likely to sustain a woodworking injury. He says that the first, unsurprisingly, are the neophytes. The second are those with substantial experience. According to the standard woodworking wisdom, the experienced can become complacent and overconfident through in their familiarity with the procedures. I have heard a similar phenomena exists in shooting and hunting.
I believe a healthy respect for the process, whether it be depositions, woodworking or shooting can be most useful. Failure to prepare for a deposition can lead to real consequences for your case and wastes your client's resources and the time of the witness. This is true both taking and defending.
Every case has issues that the experienced litigator must worry about and one should have the issues, the story, and what you need for trial and summary judgment whenever one preps in order to avoid your case suffering injury (I have found that experience has, if anything, raised my anxiety in the preparation phase of depositions, though prep and experience have lowered my aniety once the deposition has started.)