15 Tips to Dominate Your Deposition ....

After 20 years serving as an expert witness, some part-time, and the last twelve years full-time, I’ve given about fifty depositions. I have not mastered the art of deposition testimony, but I have learned lessons for myself that may be useful for others. The following is not a comprehensive list, and your mileage may vary:

1. Insist on prep sessions—plural. Insist on at least one, preferably two, preparation meetings or phone/Zoom calls with retaining counsel. Discuss the thorniest issues in the case. (Every case has them.) Resist counsel’s suggestion to bypass this step (“You’re an expert, so I’m sure you know how to handle yourself…”) or a proposal to defer it to the eve of the deposition.

2. Build a discussion agenda. Draft a checklist of topics to cover with retaining counsel, including “thorny questions.” Include mundane issues regarding location, opposing counsel’s questioning style, payment, etc.

3. Be rested. Get a good night’s sleep the night before.

4. Reverse-engineer sufficient lead time for proper preparation. By the time of your deposition, months or a year may have passed since you touched the file or finished your expert report/disclosure. Prepare for the deposition by “turning every page.” Refresh your knowledge and familiarity with the case and the issues. Remember to review your Disclosure or Rule 26 report!

5. Watch for “Motherhood and Apple Pie” questions. Beware questions starting with preambles like, “Would you agree…?” Some call these “Voice of Reason” questions, framed so that, on the surface, only an idiot could disagree. (See Ken Broda Bahm’s excellent blog post: https://yourtrialmessage.com/when-youre-crossed-handle-the-voice-of-reason-questions/?utm_source=rss&utm_medium=rss&utm_campaign=when-youre-crossed-handle-the-voice-of-reason-questions,) Often these are overreaching and overbroad principles that have exceptions and deserve nuance.

6. Reframe nervousness as excitement. It’s natural to feel pre-deposition jitters. Reframe those emotions. Tell yourself, “I’m not nervous – – I’m excited!”  Everyone feels butterflies in their stomach. The key is to make them fly in formation. Remember the words of tennis great Billie Jean King, “Pressure is a privilege.”

7. Allow extra time for transport and logistics. If you’re traveling to a lawyer or court reporter’s office, map out directions, estimate commute time, and allow an extra cushion for traffic, congestion, roadwork, finding parking, etc. Leave ample time to get to the deposition early.

8. Command your space. If you’re giving an in-person deposition, command the space. Walk around the room. Get familiar with it. Check the lighting. Look out the windows. Locate the restroom. Silence your cell phone. Take the initiative and introduce yourself to opposing counsel, the court reporter, and the videographer. Imagine it’s YOUR space, and they’re your guests. Every moment--even those videotaped--you are on stage. (I recommend Amy Cuddy’s book, Presence: Bringing Your Boldest Self to Your Biggest Challenges.”

9. Pause before answering any question. Listen carefully to each question. Answer the question and only the question. Know when to stop.

10. Pack snacks. You don’t know how long the deposition will last. (Tip: Ask retaining counsel for an opinion on this in advance, but don’t consider it gospel.)  Sometimes, provisions will be available; sometimes, they will not. You may decide to break for lunch. Other times, everyone agrees to “power through.” Pace yourself. Manage your energy by requesting a break every 45 to 60 minutes. Bring energy bars, an apple, or bottled water. Better to have them and not need them than to need them but not have them.

11. Don’t expect to have a photographic memory. If opposing counsel asks about documents you don’t recall, ask them to share the document with you to refresh your memory. You’re a subject matter expert, not the reigning North American Memory Champion!

12. Calibrate expectations. Don’t see a deposition as a forum where you will “make your case.” If opposing counsel is skilled, they won’t give you that chance. That opportunity will come at trial, during direct examination.

13. Scour fact witness depositions for potential themes that may arise as opposing counsel questions you. Often, transcripts of corporate representatives and fact witnesses portend the questions or themes you confront in your deposition.

14. As Lady Gaga would say, “Puh, Puh, Puh, Poker Face.”  Keep calm, exercise emotional self-control, and mask any irritation or fatigue.

15. Don’t run for the exit. At breaks and the close of the deposition, be deliberate in packing up and leaving. Through body language or sighs, do not signal that you have been through an ordeal, even if you have! Thank the opposing counsel, the court reporter, and the videographer. You want opposing counsel to come away with the impression that you not only “know your stuff” but also that you’re the type of person jurors will like!

At this point, I must “run for the exit” . . .  to prepare for an upcoming deposition!