Taking Depositions: Preparation Strategies for Lawyers | NextPoint, Inc.


Taking statements is arguably the most useful discovery exercise in gathering information and building a solid case. This is the only occasion, before the trial itself, where a lawyer can question a witness about almost everything he knows about the case. In other words, it is an extremely vital part of any litigation, where preparation is key.

Unfortunately, too many legal teams enter depositions unprepared and unorganized. The deposition process is often left to the very last minute as review teams struggle to finish combing through documentary evidence. Because depositions are often done under time constraints, you should not go blind. We’ll walk you through how to prepare for your depositions in the most organized and thoughtful way.

Taking depositions to the next level

Identifying the number of depositions to take and who will be deposed are elements of a well-drafted discovery plan. But neither is a required part of the meeting and conference or discovery plan as described in Rule 26(f)(3).

This means you have some freedom to improvise as new information comes to light. Unfortunately, if your team waits too long to identify material depositions, topics and issues, it will be impossible to make the necessary depositions in a timely manner.

This happens because many attorneys are still fact-finding and unsure of what affiants might have to say. It is essential to know the facts of your case (if possible). Know the claims. Know the law and the objections that may be raised by opposing counsel. It will be helpful to have copies of your statements for everyone in the room. Although it is a lot to think about, it is imperative to check all these boxes.

As noted in our recent article on Preparing for Trial 101, create a plan even when reviewing documents. Whether you’re on the plaintiff’s side or the defense side, it’s important to know what you’re looking for, how to build a case, and how to defend yourself. As you discover new information, the plan may change. But it does provide a framework for what you’re looking for and the questions you need to ask.

Coding and searching for repository transcripts

Preparing witnesses and managing depositions in a small case is relatively straightforward. For large-scale litigation, like Multi-District Litigation (MDL), we see transcript repositories with 5,000 or more transcripts for witnesses in all cases. In these subjects, it is useful to encode transcripts with metadata and add fields so that they are searchable.

With the metadata in place, you can search across expert witnesses, fact witnesses, jurisdictions, and search for ongoing or even concurrent cases.

This way you can search fields to find a witness in a particular case or identify useful expert witnesses. You can see all the cases for which each witness testified and determine if you can reuse this testimony.

statement taking technology

Old-fashioned physical filing cabinets are an antiquated way to organize evidence and information when taking depositions. By using a secure online repository, you can organize the database to share notes and highlights with your team. You can also download and provide a clean version to the deponent, opposing counsel and court reporter.

Litigation management software with calendaring, time reporting, and other tools is essential for organizing and planning your depositions. You will have time constraints. When discovery is served, appoint someone to meet the deadlines.

Progress reports and occasional town hall meetings will alert everyone if unfavorable information comes to light. Discovering a new claim may require a change to your response.

What’s new in the repository software

In every case, there are “hot docs”. These are important documents that will one day find themselves attached to a file, enlarged and used as an exhibit, or repeatedly dismantled in a deposition. A well-designed coding layout will easily mark and identify these documents in priority for further review.

When hot documents appear, it should be possible to send everyone a link to that document so that everyone from associates to designers or opposing counsel can access the same item. Sharing work product securely and transparently in a collaborative database environment helps ensure that you are not duplicating work. It also means that no one can claim never to have received this important document.

And of course, before taking depositions, get your exhibits in order with a stamping/numbering tool. All modern litigation software should offer such functionality. Quickly identifying key filing documents for your team can dramatically change the course of a dispute.

Even with these tactics, taking statements can be complicated and difficult. But the right amount of organization and technology ensures your team can handle the challenges.

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