The Art of Advocacy

Once the goals of the deposition are selected, the next step is to consider organization of the questioning. Because you are not at trial, you are not necessarily putting on a rhetorical show for an audience. Some pointers that relate to direct or cross examination, such as those concerning body language and delivery, are not as relevant here.

Still, in a deposition you are, even if tangentially, developing a case. You want to elicit favorable testimony, and to do so requires strategic questioning. It’s possible the testimony could come before the jurors later on, so you want it to read to your liking. Try to begin and close with strong testimony. It’s often mentioned, but worth repeating: people remember best that which they hear first and last. This principal has always helped me organize witness examinations and depositions, as well as opening statements and closing arguments and everything in between.

Unlike a direct examination at trial, however, a deposition need not be quite as selective. You may want to ‘cover the waterfront’ and ask a lot of questions as you try to turn up any valuable information from the witness.

To help yourself keep all this in your head, consider preparing a deposition notebook that contains an outline of what you want to cover, technical questions written verbatim, and reminders for follow-up queries. Organizing documents in advance, pre-remarking them and having copies for other counsel is also helpful.