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.