Depositions are a crucial discovery tool, offering a unique chance to gather information and assess the strength of a case. However, simple mistakes made during depositions can turn this powerful asset into a liability. Let’s break down five of the most common deposition mistakes attorneys make and, more importantly, how to steer clear of them.
1. Inadequate Preparation
Failing to meticulously prepare both yourself and your client is a recipe for trouble. In-depth knowledge of the case is essential. Studies suggest that attorneys who spend less than 5 hours preparing for a deposition see a significant decline in successful outcomes.
- The Fix: Outline key questions and anticipate potential counterarguments. Coach your client on likely questions they’ll face, emphasizing the importance of honest and concise answers.
2. Neglecting the Witness's Demeanor
A witness’s credibility extends far beyond their spoken words. Nonverbal cues can be just as revealing as their testimony.
- The Fix: Train yourself to observe the witness’s body language. Are they nervous, confident, or evasive? Pay attention to how their demeanor shifts under certain lines of questioning. This non-verbal data can inform your trial strategy.
3. Rushing the Process
Depositions can be lengthy and tedious. But rushing the process can cause you to miss vital information. A recent survey indicated that over 65% of attorneys admit to rushing depositions, jeopardizing the accuracy of the testimony.
- The Fix: Schedule sufficient time for the deposition and approach it strategically. Take calculated breaks for yourself and the witness. Remember, patience can often uncover inconsistencies and crucial insights.
4. Fixating on 'Winning' the Deposition
Depositions are about information gathering, not courtroom theatrics. Aggressive or overly combative tactics can often backfire. A hostile atmosphere may make the witness less forthcoming.
- The Fix: Aim for professionalism and measured questioning. Focus on extracting information rather than scoring points. Your goal is to gain a clear understanding of the witness’s perspective.
5. Losing Control of the Proceedings
Depositions demand focus on behalf of the questioning attorney. Distractions or unpreparedness can quickly derail the deposition.
- The Fix: Minimize interruptions, have all necessary documentation readily available, and ensure you have a firm understanding of deposition rules and procedures. It’s your job to maintain a structured and productive environment.
Protecting Your Case
Attention to detail and strategic preparation go a long way in avoiding these deposition pitfalls. While depositions can be stressful, the quality of the information you obtain can significantly impact the trajectory of a case.