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How to Prepare for a Deposition (For Lawyers)

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A deposition, like trial, is usually won or lost in the preparation.  On today’s Legal Brief we are going to show you exactly how to prepare for a deposition.  Remember: by failing to prepare you are preparing to fail (too cheesy?)

Okay, you have decided it’s time to depose a witness.  90% of attorneys don’t go about this the right way and we are going to get you in the top 10%.  Don’t worry – I got your back.

MOST lawyers at this point are going to email their assistant to schedule the deposition and then send out the Notice of Deposition.  Then, maybe a couple days before they will begin to prepare for the deposition …wrong wrong wrong.

The first step after deciding to depose is to make your outline/checklist.  I usually write this is in a yellow pad but, just for you, I have typed out a standard deposition outline/checklist because you wouldn’t be able to read my handwriting.

Here it is – this is what I might do for the Defendant’s deposition in a car accident case. At the top I leave room for the deponent’s name so I don’t forget and ALSO, leave a space for the Court Reporter’s name! It’s always easier to Order the transcript if you have her (or his) name.

Next, you need to have an organization to your deposition.  That’s the key.  Most of the time, I organize by the allegations in the Complaint – the elements of the cause of action and then the affirmative defenses.  90% of the time this will work for you.  

As you cover each element that you need to prove, you simply go back here to this top-sheet and cross it off.  For example, the first thing on my outline is Venue/Jurisdiction so I really just need to prove that the accident occurred where I filed my lawsuit and maybe prove that the Defendant resided in the County where we filed.  So, I just need to ask “did the accident occur in Orange County?” and “Did you live in Orange County at the time of the accident?” And that’s it for that and I can cross it off.  It’s simple but then you’ll never forget to ask the questions.

The second part of this checklist is the documents you want to get in the record.  This is actually more important.  Here you list under each section what documents you want to get in the record through the deposition.  Once you get it in you cross it off and then jot down next to it what Exhibit it is, for example, the Defendant’s Driver’s License was Exhibit “A” so I just write “A” next to it.

Now you have a way of making sure that you cover all the elements of the cause of action AND that you get every bit of evidence you want in, in.

(Go through Duty, Breach, Damages, Fabre Defendant)

Okay, Step Two – and where a lot of lawyers mess up.  AFTER you have your Outline/Checklist you ask your assistant to schedule the deposition but you make sure that you review it before it goes out!

Here is a sample.  The first thing to check is whether you put the other side on Notice that the deposition is being videotaped.  Here we did not so we can’t videotape.  Next, you refer to Exhibit A for the documents to be brought and then what is Exhibit A?

That’s right, Exhibit A is the documents that you have listed on your Outline/Checklist.

Now you have the deposition set up correctly – with some thought and when you sit down to prep the day before, you will be able to focus on the witness, your excellent cross-exam techniques (because you watched my other videos) and, most importantly, you will not be driving back to the office afterwards and suddenly realize that you forgot to ask the most important question.  I hate that feeling don’t you?

Jeremy Hogan
Jeremy Hogan
Attorney Jeremy Hogan is a partner at Hogan & Hogan.