Trial Magazine

Learning the art of taking and defending depositions is a fundamental skill every trial lawyer must master. It requires persistence, patience, and—most of all—practice. In the following pieces, new and experienced attorneys weigh in on what they’ve learned, what they wish they had known, and how they continue to hone their skills. From ways to get more deposition experience to a guide on prepping your client, here’s some advice no attorney should miss.

After practicing for more than 25 years, one thing has become clear: Depositions are the best time to obtain testimony for a successful case outcome, and you can often get that testimony directly from adverse witnesses. That’s why I treat each deposition as if the testimony will be played to a jury—and why I videotape every deposition I take. In my experience, corporate employees who have conceded in deposition important points that are favorable for the plaintiff’s case have a way of being unavailable or outside the court’s subpoena range when it’s time for trial.

I initially prepare for a deposition by reviewing the questions and instructions that ultimately will be submitted to the jury. That often is as simple as looking at the pattern jury instructions for your jurisdiction. This review will remind you of the elements you need to establish to prove your case, help you formulate the “rules” of the case,¹ and help you define the deposition’s goals.

Determine the facts you want to establish through the witness to meet the elements of your cause of action. Also determine the admissions you’d like to obtain. In most cases, this includes getting the witness to agree with the rules of the case, having the witness explain the reasons for those rules, and demonstrating that the witness ­understands what can happen if the rules are not followed. The goals should be written out, visible to you, and in a format that makes it easy to check them off as you meet each one.

When you start the deposition, you have a chance to size up the witness and determine the best approach to take with that person. Unless you sense that the witness is going to be nonresponsive and combative, it is often best to be nice.

I recently handled a wrongful death case in which an insurance company denied liability based on a medical examiner’s (ME) report concluding the defendant driver suffered a cardiac event before the crash. I was concerned the ME would feel compelled to stick with the opinions in her report at her deposition. But instead of aggressively attacking her conclusions, I took a soft cross. I politely walked the ME through the objective information about the ­driver’s braking and steering, which we had obtained from the vehicle’s crash data recorder, and gave her the opportunity to explain that she did not have that data when she completed her report.

When I eventually asked for her opinions, the ME agreed that the ­driver’s pre-impact actions made the type of cardiac event she had noted in her report unlikely. She even volunteered to change her report to reflect new opinions based on the information she had been given during the deposition. The case favorably resolved within a few days.

Not every witness responds to a soft cross with honest answers. If the witness is uncooperative, take a different approach. But always prepare your goals, and remember—the deposition may be your only chance to get the testimony you need.

Robert E. Ammons is the founding partner of The Ammons Law Firm in Houston. He can be reached at rob@ammonslaw.com.

Note

1.  1. See Rick Friedman & Patrick Malone, Rules of the Road: A Plaintiff Attorney’s Guide to Proving Liability (2d ed. 2010).