Preparing for a deposition or trial is like studying for an exam: Everyone has their own process, what works for one may not work for another, and it takes time and experience to decide what works best for you. But once you develop your process for preparation, it not only helps focus your efforts, but it also gives you the confidence to know that you are fully prepared. After all, nerves are often caused by a lack of preparation. This article aims to help you organize your efforts to prepare for a deposition.
- Review documents.
The first step to preparing for a deposition is to obtain and review the relevant documents. Documents are central to the deposition. They are the anchors to the story of the case, and they will therefore help you gain admissions on the key legal issues in your case. An effective deposition turns on the effective and comprehensive review of the available documents.
- Identify key exhibits.
You of course cannot review every document with the deponent – and you don’t want to. It is therefore important to identify the most important documents that you will want to address with the deponent. Your key exhibits may be the contracts or documents that are directly at issue in this case. Or they may be notes, emails, or memorandums that contain admissions or demonstrate that significant conversations took place. And, in many cases, you will want to be sure to include the pleadings and answers to written discovery requests in your exhibits, as those answers may be inconsistent with facts contained in the documents that have been produced.
- Evaluate chronology.
Chronology is powerful. Human beings do not act in a vacuum. For the most part, our actions are reactions to something that has happened or something that someone has either done or said. Once you organize your documents in chronological order, you are able to better understand why a particular character in the story of your case has acted in the way that he or she did. In this way, the chronology can help you gain admissions about a party’s motives or intent. Conversely, if, in evaluating the chronology, it is not clear to you why the deponent or person has acted in the way that they did, then that is often a clue that you need more information – an area that you need to further explore in your deposition or through other discovery.
- Develop your theory.
Stories are the oldest and most effective way of conveying information. Effective trial lawyers (as opposed to mere litigators) give great thought to the story that their client has to tell and how they intend to convey that story to a judge or jury. Through all stages of the case, an effective lawyer develops that narrative, gaining admissions and building a strong record that tells that story.
Your theory of your case is a combination of law and fact. Once you have evaluated the key exhibits and chronology of your case – once you know the story, you will need to evaluate how that story aligns with the law that governs your case. Through that exercise, you will identify the most crucial facts and issues that need to be addressed at the deposition. Keep in mind, however, that the deposition may change your theory. It is not at all uncommon that the deponent’s testimony will challenge the story that you put together based on the documents that you had reviewed, causing you to re-evaluate your approach to the case.
- Craft an outline.
Your outline, at this point, has largely written itself. You know the key exhibits that you want to use (and probably in what order), and you know many of the key points that you want to address. Through the isolation of key exhibits and the development of the chronology, you are a long way toward developing your strategy for gaining key admissions, and you know the areas in which you need to gather more information. The final step is to create an outline to ensure that you cover each of those points during the deposition. But, at the deposition, do not marry yourself to the outline. It is important to remain flexible to allow yourself to follow-up on unscripted comments that the deponent might make.
In the practice of law, it is often helpful to begin at the end. As you are preparing for the deposition and crafting our outline, put yourself at your desk writing the motion for summary judgment (or the response to a motion for summary judgment), preparing for trial, or drafting the appellate brief. Think about the facts and issues that the motion-drafting, trial-preparing, appealing version of yourself would like to see developed and explored in the deposition transcript. Those facts and issues should remain the focus of your deposition.
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