Deposition Outlines: Should You Write Out Every Question?

The more deposition experience you have, the less likely you'll want to script out deposition questions ahead of time. After all, you need to be able to listen to the witness and respond with a new question based on his answer--and you don't know the answer until you ask the question.

For this reason, deposition outlines are often just a list of topics and sub-topics you want to cover with the withess. As you're getting to this point, however, there is nothing wrong with scripting out some of the questions you'll be asking. A principle benefit of this approach is that it will help you to better visualize the deposition process before it happens. Just remember to be flexible enough to set your scripted questions aside at the real deposition when the witness wants to take you off on a tangent that needs to be explored.

Comments

[charley hardman]

evan, i recently had my first deposition round (giving and receiving, pro se) last month, and the advice from your site was greatly appreciated. i did write out the first 4 or 5 questions explicitly, because they were guidelines boilerplate (delivered in a shaky voice), then shifted entirely freeform, based on document highlights, keywords, and live answers. only way to go, in my opinion.

was able to choose the order of the two depositions (whether me first or the defendant), and i think it was best to be on the defending side first. much easier to defend aggressively than to try to cut through an experienced lawyer's overt thwarting. my biggest screwup, though i tried very hard to remember: there's no jury, and acting as though there's one probably does nothing but show your cards. deposition strategy is another world; so easy to forget in the moment.

thanks. your depositions category is a gold mine for new lawyers and pro se hacks.

[Yeoman]

Having taken hundreds of depositions, my approch now is to make notes of things I absolutely want to cover, and not to script anything.

It's always an error, in my view, to have a detailed script for a deposition. Lawyers who do that ignore the witness, and read from their list. A couple of years ago I defended a deposition as the sole lawyer for a defendant in which the corporate plaintiff had three lawyers (messy corporate case). They were all so used to scripts that they completely ignored what my client was saying. I think my client could have admitted to being Adolf Eichmann and they wouldn't have picked up on it.

Also, there's a bit of an advantage in not necessarily asking questions in a logical order. If you remember something, ask it then. It's disorienting to the deponent, and you may get information that they otherwise would be too ready to avoid giving you.

[jimbo]

In general, an outline of areas to question should be developed. But scripting certain deposition questions may be very helpful if the subject matter involves complex technical issues. However, whether scripted questions are used or not, the lawyer should always be listening to the deponent and be prepared to go on a slightly different tangent if needed, or to follow-up on information the deponent gives.

[Mark JS]

Unfortunately, many "deposition experts" and seminars suggest very detailed outlines with lots of scripted questions. Then attorneys who think they are very smart use that to berate attorneys who actually understand how to listen in complex depositions and to teach young lawyers to be bound by the outline, rather than guided by the issues.

I wish we could stop these idiots from giving seminars.