A few of the cases I'm working on are in full deposition mode, which means I've had plenty of travel time to do some thinking about the two most common deposition errors and how to learn from them.
One of these two errors I observe most often in plaintiffs' lawyers, the other in defense lawyers. I'll admit up front that I'm guilty of both, even though at this point in my career, I usually represent plaintiffs.
Plaintiffs' Lawyers Perhaps it's because plaintiffs' lawyers aren't paid by the hour that some don't do enough preparation before a deposition begins. This is known in the trade as "winging it," and it doesn't work well at depositions, even if a lawyer has so much style that an outsider might mistake it for substance. I've already written about this error in another post, "The Dangers of Winging It in Depositions." There's a solution for this problem, which I don't need to repeat again here.
Defense Lawyers Perhaps because defense lawyers are paid by the hour, they often have the opposite problem: preparing too much. To be fair, it's not the preparation that's the problem, it's the way the preparation--which usually takes the form of a lengthy outline--ties the lawyer down to a single way of thinking, thereby preventing him from following the witness down potentionally fact-filled alleys when the witness unexpectedly turns in those directions. Glued to his outline, this lawyer couldn't wing it even if he tried. The result is that a good opportunity to move the case forward is wasted.
I don't mean to suggest that outlines are unnecessary. (That would be professionally stupid, since I wrote a book about them.) To the contrary, outlines are a recommended means of preparing for a deposition. You just have to know when to cast them aside. As both of my two common errors derive, in part, from attitudes towards deposition outlines, I'll add a few other prior posts that touch on these issues, "Deposition Outlines: Should You Write Out Every Question," and "Depositions: Are Outlines Uncool?"