Can You Wing It At A Deposition?

Evan Shaeffer wrote a book called Deposition Practice Tips.  Certain excerpts from the book appear here

I want to focus on Section 1.111,  which Evan titled "Can You Wing It At A Deposition?"

Here, in bold print,  is his work:



Can you wing it at a deposition? Undoubtedly, you can. When depositions don’t give you butterflies anymore, it can give you some pleasure to know that you can step into a conference room and conduct a complete deposition barely giving a thought to preparation.

What are the dangers of winging it? While style over substance can get lots of lawyers through depositions, “winging it” is never a good idea. If you are merely going through the motions, which is the whole point of winging it, you are not adding value to the case. It’s not a good way to lay the foundation for trial or settlement.

Before winging your next deposition, here are some questions to ask yourself:

  • What are the goals of the deposition? Are you merely gathering information or can you also get helpful admissions from the witness? How do you plan to achieve your goals?

  • Do you plan to exhaust the witness’ memory on certain issues? Which ones? Why these issues and not others? When you are finished, will the witness really be pinned down, or have you left some doors open for him to wiggle through later?

  • Have you reviewed the pleadings? If not, why not? Have you looked at the discovery responses and documents? Which ones do you plan to use at the deposition, and why?

  • How is the witness going to fit into your plan for trial? Have you even thought about trial? How will the witness support or detract from your legal claims or defenses?

  • How can use the deposition in motions before trial? Have you thought about the ways you’ll use the deposition in other depositions? Have you thought about the ways you’ll use the deposition at trial?

No matter how memorable your deposition style, there’s simply no substitute for thoughtful preparation.

Depositions are the most important part of the pretrial process.  If the deposition is important enough to take it is important enough to spend the time necessary to prepare for it.

It is very easy to say to yourself, "I have taken hundreds of depositions like this one.  I can just drop in, get started, and it will be fine."   And with that level of experience in that type of deposition, you might be able to take a "B" deposition.  But to take an "A" deposition, you need to thoroughly prepare.

And, if you don’t have substantial experience in taking a particular type of deposition, you will not manage a "C" without substantial work.

No matter what  grade you received in your "Litigation Skills" class.