Over the past few weeks, I have taken about ten depositions in various cases in Georgia, Alabama, and Tennessee. Of course, you can take a Texas-style deposition like in the following video, but I would recommend a different approach.
Getting back to reality, many cases are won or lost in depositions. Thus, I started thinking about the big themes – the things that really matter if you are an attorney looking wanting to be effective at taking depositions. Here are some things that, in my opinion, you must keep in mind when taking depositions.
- Size ‘Em Up – It is critical to evaluate a witness to assess how they will present in court, period. So much of the human dynamic of how people are perceived in court by judges and juries are lost by lawyers who fail in this area. Is the person you are deposing believable? Do you believe what they say? Do they look you in the eye? How do they respond when asked the hard questions? Are they hostile? Are they credible? If you are deposing a person who appears credible, this must be taken into consideration in evaluating your case if it goes to trial.
- Lock ‘Em Down – Impeachment with prior testimony is a powerful tool in your arsenal to make your case stronger. I tell my clients in preparing for depositions that what they say in the deposition will be permanent, etched in stone. Changing their story later, especially on things that matter, can have dire circumstances. All too often, lawyers miss this “low hanging fruit” by failing to effectively impeach a witness in court with their deposition. Remember, anytime a witness in court deviates from their deposition testimony, you have a prior inconsistent statement. Of course, it takes common sense and experience to know what deviations matter and which don’t matter.
- Gather Information – In the words of the late Ronald Reagan, “Trust but verify.” The deposition is a time for you to learn more about the other side’s case and your case. I constantly think in terms of the 5 W’s – Who, What, When, Where & Why. When I am asking questions in a deposition and something piques my interest, the 5 W’s usually lead me down the right path. You want to probe the person you are deposing in great detail about things that matter
- Prove Your Case – If you are facing summary judgment issues, you had better know the law before critical depositions. Read not only the case law but the pattern jury instructions. Scan the Answer and other pleadings for issues that need to be addressed. If you must prove, for example, that the hole through which your client fell on a construction site was more than 6 feet off the ground in order for certain OSHA fall safety regulations to apply, you sure better ask the simple question of how high the hole was off the ground. If you must prove that a person owned the property in question in a premises liability case, you should ask who or what entity owned the property in question during your deposition. In a slip and fall case, it is important to show whether a shopkeeper had policies in force to check for hazards and spills. Therefore, it is important to ask these questions and probe using the 5 W’s during your depositions because the last thing you want to get is an affidavit in a motion for summary judgment that eliminates any possibility of you proving a prima facie case.
I hope that these overall themes will help you prepare and take your next deposition. If we can help you in any way, please do not hesitate to contact us.
The Law Office of Jack Clay is an Atlanta area law firm handling injury and accident cases across the state. Many of our cases come to us by way of referral from other attorneys. If you are interested in seeing if we can assist you in a co-counsel relationship, please call or email Jack Clay.
