An Updated Practical Guide to Taking and Defending Depositions

Authors

Gary S. Gildin

Abstract

The deposition offers a singular opportunity to handcuff the deponent to an irreversible script. Consequently, both the attorney taking the deposition and defending counsel must prepare for and conduct the deposition with equal if not greater care than the trial.

Traditionally, lawyers have used the deposition to discover facts relating to the legal elements and the credibility, perception, and recollection of the witness. However, recent breakthroughs in neuroscience as to how the brain makes decisions have revealed a different genre of evidence that will drive how the trier of fact will decide the case. Today an attorney taking a deposition also must probe the elements of story—character traits, motives and the stakes.

Proper handling of stipulations and thorough execution of an introductory litany at the outset of the deposition are prerequisites to ensuring that the witness cannot credibly offer different or additional facts at trial without being impeached. To continue to shackle the witness to the transcript, over the course of the deposition the examiner constantly must be mindful which of three objectives they are pursuing—constructing nablas, admissions testing, or surfing for nablas—and adopt the questioning technique necessary to achieve that end. When examining about a document, the attorney taking the deposition must employ additional techniques to ensure the answers will bind the witness at trial. Finally, deposing counsel must understand how to respond to and manage objections—both legitimate and spurious—as well as deal with any attempts to coach the deponent or otherwise obstruct the deposition. Both during and after the deposition, the defending attorney must take permissible steps to ensure the accuracy of the testimony, minimize its damage, and preserve evidentiary privileges. However, defending counsel’s most critical role–while at all times acting within the bounds of rules of professional conduct–is to fully prepare the witness for the deposition. The goal must be to make the deponent sufficiently comfortable with what will transpire so they can accurately convey what they do know, comfortably concede what they do not know, and avoid being led into admitting facts that are not true.

Recommended Citation

Gary S. Gildin, An Updated Practical Guide to Taking and Defending Depositions, 129 Dick. L. Rev. 1 (2024).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol129/iss1/2