3 Things You Should Never Do at a Deposition

By Edward Tan, JD on May 10, 2012 | Last updated on March 21, 2019

Whether you're a young associate or a veteran attorney, knowing what you should and shouldn't do at a deposition can be tricky and nerve-racking. Not to mention expensive if you screw up.

After all, it's one of the most important first interactions you'll have with witnesses and opposing counsel. And it's arguably where cases can be won, lost, or settled, depending on the outcome.

That's why whenever you conduct a deposition, you should keep the following things in mind.

1) Forget to Use "On the Record" & "Off the Record"

Want to go off on an unrelated tangent? Worried that a line of thought may leave your client exposed or just don't want the court to hear your ramblings? Then remember to utter: "off the record" and "on the record."

While it might sound like common sense, you'd be surprised how many lawyers forget to use these phrases. Not using them can turn a fleeting discussion about medical bills into a case-ending admission. So control the flow of evidence by remembering to take it off the record first before you or your client talks.

2) Use Improper Objections and Forgetting Proper Ones

The point of a deposition isn't just to gather relevant facts to prove your case. It's also about finding discoverable evidence. The latter of which is really important when it comes to remembering which objections are proper and which objections aren't proper.

Hearsay, relevance, assumes facts not in evidence, and calls for an opinion are all improper deposition objections. Though they were ripe material for your law school evidence exam, they have no place in a fact-finding mission.

Conversely, privilege, form of the question, asked and answered, harassment, and mis-characterization of earlier testimony are all proper deposition objections.

3) Come in Without a Plan

Every young associate knows that if you stretch out a deposition to noon, you can sometimes get a free lunch out of it. While free food is great, that shouldn't be the goal of your deposition.

What should it be? If you don't know, then you're already behind. Much like in law school, outlines are your savior here. Figure out the key facts and admissions you need for your case first. Then formulate and write down your questions.

And if you don't like reading your queries, at the very least write down the issues you're trying to resolve and keep them in front of you.

Knowing what you shouldn't do at a deposition will not only help you win cases, but it'll also keep you from looking incompetent.

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