After reporting and transcribing over 5,000 depositions in the past 35 years, I believe I have a good base to offer advice to new attorneys taking their first few depositions.
I’ve reported in prisons and hospital rooms, in funeral homes and warehouses. I’ve been fortunate enough to have worked for some of the best attorneys in Kentucky, both on the plaintiff and defense side. So, here we go and I hope that some of what I’ve seen and heard can be applied to you as you start your career as a litigator:
1. Take your time
You’ve gone to school for seven years and you’ve passed the bar, congratulations. In doing your first few depositions try to relax, slow down and take your time. You’re not on the clock to get this finished.
Note: This also applies to being in court. When things go wrong, your first reaction should be to slow down.
Young attorneys can be pushed around with objections, or with more seasoned attorneys asking when you’ll be finished, you’ll hear exasperations or even see them rolling their eyes. So what? This is your time, so take it. You’ve earned it over these last seven years getting ready for this.
You’ve been given an outline of questions to follow, which is great. The idea is you won’t miss anything if you keep to the script. On the other hand, if all you’re doing is running through those printed questions, you may miss something important that’s said in response to those questions. So, ask your question and listen to the answer.
Put another way: Pick up on the personality of your witness. Unless they’re an expert that’s testified hundreds of times, your witness, just like you, is nervous.
For example, some people are uncomfortable with silence. Early on in the deposition give a witness a second or two after they’ve answered and before your next question to see if they will keep talking to fill the void. You just might gain some valuable information.
I have seen and heard witnesses mess up big time if you just give them the opportunity.
3. Be courteous
This isn’t the time or place to push someone around or to show someone how tough you are. Kentucky litigators are a small circle and what comes around goes around. Remember, you have a client that will be asked questions, too, and you want them to be treated with respect.
Once the witness states their name for the record, ask them for permission to call them by their first name. Make eye contact, ask them if they’d like something to drink. Compliment them without being disingenuous.
4. You’re always in front of a jury
A very well-known attorney once asked me as I was packing up if they had spoken too fast in questioning the witness. I answered, no, but thank you for considering me. I was then told, well, if I’m honest, I really wasn’t concerned about you, but I like to think of myself as always practicing for being in front of a jury. You do this everyday and if I’m speaking too fast for you, then I’d be speaking too fast for a jury.
5. Stay in the room
When you’re not asking questions, stay in the room. Put another way, put that phone down. None of us can do two things at once and do them both well.
I once saw a witness give their attorney a dressing down for being on the phone and not paying attention while they were answering questions. I’m paying you to be here with me, not on your phone.
6. People will read this
Remember that you’re making a record, a record that will be there as long as this case is active. Be aware that we have to write down mm-hmm and uh-uh and okay at the beginning of every question, you know what I’m saying? Don’t let the witness make gestures. This will only burn you once before you never let it happen again.
7. Find your gift
Every successful attorney I’ve seen has their own unique way of examining a witness. I have a client whose personality is such that when he walks in the room everyone is just happy to see him. He’s kind, he’s funny and he’s unassuming. He takes over the room and I don’t even think he realizes it.
I have a client that’s incredible on the fly, that can pull things out of thin air. Some are better at the medicine than others. I’ve seen a defense attorney that somehow gets people to admit to the most embarrassing things about themselves.
There are some incredible attorneys in our state. Pay attention and learn from them. Pick up on what works for them and see if it will work for you. But most importantly, just be yourself because it shows if you try to be something you’re not.
Okay, here’s a bonus tip:
Get to know your court reporter and take advantage of the services they can offer to make your job easier. You’re paying for their services, so get the most of it: Realtime, sync’d video, rough drafts. The list goes on.
I remember an attorney that tried many cases to verdict tell me that he was amazed at how much my job had changed over the years with technology, the Internet and even video, whereas his job had stayed basically the same. So, ask us if you want and/or need something because, like I said, we’ve seen it and heard it all before.
ABOUT THE AUTHOR:
Rick Coulter is a certified and realtime court reporter and owner of Coulter Reporting, LLC, based in Louisville, Kentucky.