Taking Depositions: Six Common Deposition Mistakes

Jimmy Drago
December 27, 2011 — 1,090 views  
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Prior to reaching the courtroom, most legal cases require deposition taking-a process in which an attorney questions a deponent while a court reporter records the dialogue. Depositions are recorded using technologies that enhance transcript integrity. Perhaps their most critical aspect deals with an attorney's savvy in conducting them, especially concerning subtle mistakes. By avoiding the mistakes below, attorneys help to ensure a deposition produces the desired results.

Hiring an Unprofessional Court Reporter

Unprofessional court reporters have several characteristics, including: lack of court reporting credentials, casual instead of professional dress, personal opinions that might lead to prejudice against certain deponents, a habit of being tardy for scheduled meetings, and a tendency to interrupt lawyers or deponents during the deposition process. The best way to avoid unprofessional reporters is to hire a reporter through a legal services agency that employs a rigorous employee screening process.

Not Hiring a Legal Videographer

Taking depositions without videography is no longer customary. Although court reporters record the non-verbal reactions of deponents in the written manuscript, having these rejoinders on video can be critical to communicating the subtleties of a deponent's response to jury members. In many court cases, video transcripts are more compelling than written transcripts.

Not having a Clear Objective

Before deposing someone, attorneys should develop a clear objective for the deposition. Most depositions integrate the following objectives: to gather general information, to reveal key facts or admissions, and to preserve testimony for use in the trial. Knowing how to implement these objectives throughout the course of the meeting helps to ensure a deposition remains concise, timely, and straightforward.

Asking the Wrong Questions

Most deponents are asked one of the following types of questions: open-ended questions for gathering information, straightforward questions for revealing facts or admissions, and questions that mimic courtroom interrogation. In most cases, the greatest risk with asking the wrong questions is asking suspects open-ended questions that allow them to ignore the objective of the deposition. The best strategy for receiving relevant responses-or avoiding responses that are obviously evasive-is to ask succinct questions.

Focusing on Minutiae

The purpose of taking depositions is to reveal critical information, though some attorneys-especially new ones-pursue information that loosely applies to a case and would not be valuable in the courtroom. A good strategy for avoiding this mistake is to focus on information that jury members would need to make an informed decision.

Not Scheduling Enough Time

Most depositions take at least one hour, and some can take several hours. In addition to planning how much time it will take to ask questions, attorneys should plan how long it could take to answer them. In instances where questions are designed to reveal facts or admissions that could criminally implicate the deponent, his or her answers may be meandering and vague, requiring questions to be rephrased or reworded.

A session that could transpire in this manner should be allotted more time than an informational deposition. Attorneys can predict question and answer time by studying the time needed for similar depositions in previous legal cases.

 

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In my research on legal services, I studied the do's and don'ts for taking depositions.

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Jimmy Drago