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This blog post comes from repeat speaker, Robin Meadow of the boutique appellate firm Greines, Martin, Stein & Richland LLP. Robin is a former trial attorney and now a California Certified Specialist in Appellate Law. Robin first spoke at one of our seminars in 2008 and we keep asking him to come back because of his extensive expertise and of course his popularity among our attendees. Below you will get his tips on depositions.
There’s no better learning tool for how to take a deposition than seeing one used effectively in trial to impeach a witness.
It’s very important is to try to get a transcript that can be used effectively not just in trial but in motion papers and, by extension, in an appeal. That means getting good question-and-answer couplets that are self-contained, succinct and to the point. To do that, you have to be prepared to follow up lengthy answers that contain the right information buried in a lot of verbiage. With one crucial exception: Know when to stop, so that you don’t destroy a perfect answer by letting the witness explain it. “One question too many” is a frequent error.
The exception to the exception: This isn’t an appellate tip, but something that young lawyers often get wrong: Don’t be afraid of asking a question because you don’t think you’ll like the answer. Those are the kinds of questions you have to ask, because you need to know what the other side story is going to be. And, once in a while, you get a pleasant surprise. But the reason this is an exception to the exception is that if you really have exactly the right answer, you don’t want to mess with it.
Always make clear what document you’re referring to by exhibit number, Bates stamp or whatever. Getting a great answer about “this document” isn’t very useful if “this document” was identified several pages before or wasn’t clearly identified at all. Every piece of paper referred to in any way on the record at a deposition should be identified in some way and attached as exhibit. That the witness may never have seen it isn’t a good reason not to identify and attach it—that might be the best reason to do so.