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Advice for Young Lawyers -- On the Job Deposition Training

Thousands of young attorneys will sit down to take their first deposition every year the same way I did, with roughly the same amount of dread and exactly the same amount of training. 

A lot and none whatsoever.

So that someone might benefit from my own painful experience more than twenty-five years ago, I give you my earliest deposition mistakes.

Within my first month of practice, I was assigned an "easy" first deposition.  We represented an injured plaintiff who broke her arm in a skating rink accident.  

I was charged with taking the deposition of the young man who'd caused her to fall.  No documents.  Just the facts m'aam.

Here's what I learned the hard way.

You don't have to rephrase a question in response to an objection.

I did this dozens of times in a two-hour period.  At lunch, one of the grizzled old Sacramento P.I. defense attorneys grabbed me around the shoulders so hard I felt like I might break.   

"Just wait for the answer," he whispered in my ear.  "You don't need to re-phrase the question.  If the witness doesn't answer, ask the court reporter to read it back.  Say, 'do you have the question in mind?  Yes?  Would you answer it please?'" 

I fell all over myself thanking this kind man who growled in response, "I just wanna get outta here before Christmas."

The court reporter doesn't really "strike" anything from the record.

This is someone else's painful story.  I was defending a deposition that was obviously the examiner's first time.  Every time he rephrased a question mid-phrase, he'd turn to the court reporter and say, "strike that." 

Then he waited for her to do something.  When she didn't, a confused look would cross his face and he'd return to his questioning.  He must have done this a dozen times during the first hour.

Each time, the reporter just smiled that inscrutable court reporter smile, benevolent, knowing and, as I thought during most of my first year of practice, thinking, "what an idiot!"  

After several of these lengthy pauses, the reporter took pity on the poor attorney, put her hand gently on his arm and whispered, sotto voce, "I'll explain at the break."

There is no usual stipulation.  

At the end of the many depositions I'd seen before I first took my own, I watched attorneys look across the conference table and ask, "the usual stipulations?"  

So that's what I did in my first deposition.

"The usual stipulations counsel?"

Defense counsel eyed me with the admixture of pity and contempt seasoned lawyers reserve for new admittees.  This is the moment during which they decide whether to bat you around the deposition room like a cat toy or exercise mercy. 

"Why don't you put the usual stipulation on the record, counsel," he said, choosing option no. 1.  Not a question.  A declarative sentence.  An injunction.  A challenge.

Even then, a terrified newbie, I wasn't entirely a fool.  Never underestimate the power of youth and femininity.  If I could have batted my eyelashes I would have. 

What I did say, sweetly and with great deference, was this, "No, please.  You know them far better than I.  I'll let you put them on the record."

Score one for the first year attorney, who then went back to her boss to ask what the %$^# the usual stipulaitons were.

And for a break with your third Grande Latte of the day, check out this video of a first DAY lawyer defending a phony deposition in a phony sexual harassment action -- videotaped to great hilarity by his employer.  He handled himself pretty darn well under the circumstances! 

Not knowing the answers is a good thing.

My first couple of dozen depositions were exercises in guessing what happened.  We'll use the skating rink deposition as an example. 

"Did you get there in the evening?'




Several questions and answers later.

"Did you rent your skates?"


"Did you bring them with you?"


"Did you own them?"


Many, many questions and answers later.

"Did you go to the rink alone?"


"Were your friends with you?"


"Your family?"


Even later.

"Was there music playing?"


"Did you know any skating tricks?"

General laughter from defense counsel followed by "objection, vague and ambiguous as to the word "tricks."

What's the problem here?

I am making my life incredibly difficult because I want everyone to know that I know even though the point of the whole exercise is obviously to learn what I don't know.  

Here's the good news. 

When you begin a deposition, it's best to know nothing and ask innocent questions about everything.

If you're not yet in to hour three of the deposition, all your questions should begin with one of the following words:  who, what, where, when, why and how, after which you can coast along for quite some time with "and then what happened?" and "what happened next?" You can then tie the ribbon with a bow by asking "do you recall anything else whatsoever that happened during, i.e., during that first round of skating?"

If you are asking "did you" questions ("did you see the plaintiff skating when you first went on the floor?" instead of "what did you see when you arrived at the rink?") you'll either get no useful answers or, worse, answers that suggest responsive testimony but aren't.  

Here's the classic first year attorney deposition mistake.  

"Did you and your brother take Joan to the country club on the first of June?" 


What you won't know is that your witness went alone to the country club on the second of June and met Gladys who then introduced your witness to Shelly who drove him to Beverly Hills to meet Joan at her father's house on Rodeo Drive.

How do you get that testimony?  You ask open ended questions.

Do you know June?  When did you first meet her?  Where did you first meet her?  Was anyone else there at the time?  How did you get there?  Where had you been before that?  Then what happened.

Sooooooooooooooooooo much easier. 

In the next "Young Lawyers" post, I'll teach you how to authenticate documents and establish the business records exception to the hearsay rule during a deposition.  90% of attorneys at all levels regularly fail to get this one right.  You will be among the 10% and the most competent first year lawyer in the country.

Comments (3)

Read through and enter the discussion by using the form at the end
Manoj Shah - October 2, 2007 8:12 PM

That was very helpful. It's refreshing to learn that I am not the only one...

ABIOSE OLATUNDUN - November 8, 2012 3:22 AM

Am just new here, well you can call me a freshman. I really dont know what to write but i would like to get an advice on which is better, criminal law or company law because am a young girl aspiring to become a lawyer very soon.

Olivia - March 28, 2013 3:24 PM

Thank you. Thank you for having enough confidence in yourself to share your experiences and past "green mistakes." It is very rare from every lawyer I have dealt with thus far, and could not be more needed. I can't speak for all of us newbies, but certainly most of us just wish we had one attorney out there like you we could come to when we feel like an idiot.

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