Deposition Prep for First-Timers

00:03 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda, and I'll be your host. Today we're going to talk about how to handle and prepare for a deposition. Hopefully, you'll find some of these tips, tactics and techniques useful in your practice. Before we get into it, though, let me introduce our team of lawyers here. So first we have Joe Caputo, my law partner. Say hi, Joe. 00:35 Speaker 2 Hey, guys. I'm Joe Caputo. I am one of the partners here at Zynda Law Group, and me and my team focus on serious and catastrophic injuries around the country. 00:49 Speaker 1 Next up, we have a senior litigator at our firm, Neil Solomon. 00:53 Speaker 3 Hey, jag. Neil Solomon here. I'm one of the senior attorneys and handle a docket of severe and catastrophic personal injury cases. 01:00 Speaker 1 And last but not least, we have one of our lead trial lawyers, Chrissy Hagan. 01:05 Speaker 4 Hi, I'm Chrissy Hagan. I work on a variety of cases at the firm, focusing also on the severe and catastrophic cases. 01:12 Speaker 1 Well, great. Well, today, guys, we're going to talk about probably the most common thing that we do as trial lawyers, which is take depositions. And in two respects, they're really common and routine, but in others, they can make or break your case, in my opinion. So to lay the groundwork, part of the thing I wanted to cover in this podcast are maybe questions, answers to questions that young attorneys and new trialers may be a little embarrassed to ask. So let's start with the basics of when do you decide to take a deposition? And why would you take a deposition? So maybe, Joe, let's start with you. 01:51 Speaker 2 Yeah, I think it depends. When I am at least prepping my clients for their deposition, I tell them that there are two big reasons why their deposition is being taken. First and foremost, it's to pin them down on their story, to kind of evaluate what the potential exposure and what the facts are going to be at trial. And then secondarily, and sometimes more importantly, it's to evaluate them as a witness, not only in terms of their credibility, but in terms of is a jury going to, like this person, believe their story and want or desire to give them money and trial? 02:38 Speaker 4 I think the same applies for the purpose of taking a deposition. You know, you want to find out what the other side is going to say, box them in, and get some good sound bites when it comes to how you want to present your case at trial or. Or mediation, whatever that next phase in litigation is. 02:56 Speaker 3 Yeah, I was going to say to take a step Back kind of the more 10,000 foot view of when you're figuring out whatever your litigation strategy plan is going to be, mapping out what people you need depositions from. And it's really figuring out what information do you need in order to prove your case, and then figuring out the best order to go get that information. And so it kind of starts at the very beginning, and you may be able to have a general idea before written discovery, but generally after you get written discovery in, you can then formulate a pretty good plan of who you want to depose and the order you want that to happen in. 03:30 Speaker 2 You don't have to depose, obviously, everybody that you may call at trial or everybody that has some knowledge about the case. Right. You can perform written discovery, you can subpoena documents or DWQ documents. And to be honest, and I know we're using this quite often, if you don't want to deal with the coordination of a depot, if it's not a key witness, or if you're not obtaining it to play the deposition at trial, go get a written statement, go get a video statement from a potential witness, lock them in on that story, and then figure out how you're going to utilize that a little bit later on. 04:12 Speaker 1 Yeah, I think a lot of times attorneys get too hung up on doing a deposition just for discovery purposes as far as finding out information. But I think there's more than just getting information out of a deponent for a reason to take a deposition. I know a lot of times it can be good to help establish your liability case, to drive a wedge maybe between two different parties in the case, to establish your rules of the road if you adhere to that methodology. But I think there's a lot of reasons outside of just taking discovery in a case, jumping back just a little bit, you know, for those people that haven't taken a lot of depots, maybe we could walk through what is the actual process for getting a depo set in a typical case. 04:56 Speaker 1 You know, Chrissy, maybe you could walk through the nuts and bolts of you decided to take a deponent. What do you do? What is the next steps you take? 05:04 Speaker 4 So the next step that we typically do is we reach out to the other side, depending on, you know, who it is that you want to depose. If it's someone who is represented by an attorney, just reaching out to their attorney, get some proposed dates, get it set, and then you reach out to the court reporter and then after that there's the prep for it. So typically, putting together some Sort of outline of the questions you're going to be asking, Starting to gather all the exhibits that you want to ask that particular witness about putting together a deposition notebook. That's what I would say is kind of the quick overview. 05:39 Speaker 1 Do you have a preference for when you like to subpoena a witness versus getting them to come on their own, or what's your thoughts on that? If it's a fact witness, do you typically subpoena all of them, or do you like to try to get them come without a subpoena? 05:52 Speaker 4 I like to subpoena all of them, especially doing most of my work in Colorado, because if they don't show up and everyone else is there, the court reporter, the other side's attorney, the other side can actually request for sanctions, meaning that they can. If it's a huge waste of time, they'd probably be more inclined to ask the judge to pay for their time and any expense in being there. And so if they're under subpoena, it makes our argument a little bit stronger, I think, to say that we did everything we could to get the witness there, and it's not on us, that he or she just decided not to come if it's a favorable witness. 06:28 Speaker 4 So, for example, if it's a car crash case and we're talking about the officer that we want to depose, I usually reach out and see if they'd be amenable to signing a subpoena waiver. So it's less formal and so it's confrontational, Right, exactly. Yeah. Confrontational face. 06:43 Speaker 1 Like getting them served with a subpoena. 06:46 Speaker 4 Right, exactly. 06:47 Speaker 2 Well, especially during COVID 19, no one wants a stranger knocking on their doorstep with a bunch of paperwork. Right. So if it's a friendly witness, you. You know, sometimes I'll still provide them a copy of the subpoena informally, just so they have it if they need it for work purposes or school purposes. But actual service of the subpoena with the reasonably friendly witness on the first try, I think that's probably a bit too much. 07:16 Speaker 1 Well, and Chrissy, you mentioned an interesting term, deposition notebook. I remember when I first started practicing, I had no idea what was in a deposition notebook. I just knew I needed one because everyone talked about it. So what is in Yalls deposition notebook, Neil? What do you have in yours? 07:35 Speaker 3 Yeah, so it goes back to preparing for what's going to be there, for what we're going to be discussing and what we're trying to get. And so the first thing is generally the complaint, making sure we have that or petition available to us. Any written discovery from the other side, I'd want that available usually with a tabbed portion of any areas that I may want touch back upon. I'll have an outline that I prepared and I don't necessarily stick to that outline, but I'll at least have something there for me to look back on and make sure I'm covering my key points that I want to hit and then any exhibits that I plan on using. So that's the main things that are going to be there in my notebook. 08:11 Speaker 1 Joe, what do you have in yours? 08:12 Speaker 2 What would you say? 08:13 Speaker 1 A young attorney maybe. Maybe someone not as awesome as you are now, but let's take you 12 years ago when you were just kind of figuring this stuff out. 08:21 Speaker 2 Hard to believe. Yeah. You know, one thing that I used as part of my notebook in every single deposition I took from year one to probably year three or four is I had a copy of Oconnors with me. And if I didn't have O', Connors, I @ least had the deposition section copied on the printer from printed out in black and white and at the very end of my deposition notebook. And the purpose of it was to allow me, if I needed to reference the rules whether it's suspending a deposition, whether it's dealing with objections, and I'm not sure of the next step. It was kind of a comfort blanket for me to be able to rely on. 09:10 Speaker 2 And then as technology increases as well, I take a computer and a zip drive to every deposition and I put the entire file on the zip drive because I want access to anything I need. And I really can't anticipate all the time what I'm going to need to reference in the file throughout the deposition. 09:33 Speaker 3 All right, Joe, for the non Texas folks, what's oconnors? 09:36 Speaker 2 So that's a good point, Neil. 09:37 Speaker 1 So. 09:38 Speaker 2 So any sort of trial guide or practice guide. Oconnors is kind of a practice guide that allows us access to forms, case law and rules for various civil purposes. That is a great tool along with, I mean, there are many oconnors type publications out there. But any reference you have to rules that you may need to rely on with regards to deposition objections, instructions not to answer, suspensions of the deposition, bringing up, you know, exhibits and depositions that haven't been produced in discovery prior and how to handle it. I think it's a great way to feel a little bit more confident that you have all of the tools walking in that you need to be Successful. 10:30 Speaker 1 And if you're a younger or a newer attorney, I guarantee if you go against a more experienced lawyer, they're going to try to see if you know the rules against you. And so I think that's a really smart tip is know the rules inside and out. That's kind of your secret power to rebut a more senior attorney trying to push you around on a case. And that happened to me. I mean, I was the youngest attorney in the room for probably my first 12 years of practice. In every deposition I took, and every single time, the defense attorney would try to push me around, and every single time, I have to shut them down with the rules. And if you know them inside and out, you can do that. And if you don't, you're at a big disadvantage. 11:11 Speaker 1 And I've been surprised, honestly, how many times an experienced lawyer doesn't know the rules and didn't know how to reply to when I laid them out. Well, what other things do you guys do to prepare for your depositions? And how much time do you spend preparing for a deposition? 11:28 Speaker 2 It depends, right? There's probably a different level of preparedness if it's a deposition in an uncomplicated case that I've knocked out 100 times. But the only reason that it's less preparation now is because I've knocked it out 100 times. And so I. I don't think that's a good way to get started on getting prepared for depositions. When I'm preparing, I'm usually looking at what do I need to prove up for trial in terms of its admissibility or authenticating the document. I need to figure out what my charge looks like so that if there's a way that I could get poured out on summary judgment, I need to figure out what, if anything, I need to establish from the witness or witnesses to allow me to potentially create a fact issue and survive msj. 12:25 Speaker 2 I need to, if I'm following rules of the road, I need to make sure that as I'm starting the discovery process, I have rules that those rules have a basis, and then I'm prepared to introduce those rules and ask questions about them. And then I think I need to identify what other facts, information, or discovery do I need to get from this witness that I do not yet know, whether it's information about people, documentation that may exist and where it exists, or some other fact that I can only get from this witness that I need to be prepared for. 13:06 Speaker 4 I know if it's an expert deposition that I'm Taking, I'm going to be spending significantly more time prepping for that because not only am I putting together an outline, but I'm also taking a look at all the intel on this presentation, particular doctor, what other cases he or she's worked on, what other orders there are out there, whether they have a boilerplate type report they issue on all of these types of cases, and then just anticipating what they might say my client suffered or didn't suffer because they're so similar in all these different prior cases. 13:40 Speaker 3 Yeah, I think the big answer is just it really depends on the type of case, type of deposition and what you need. And then for preparation, it's just trying to figure out and boil down to what's the information that I'm trying to gather. And then what documents do I want to use to get that, Witnesses, opinions or thoughts on that document. And then like Joe said, making sure either if you want to authenticate it or not, making sure you're set up to do so ahead of time. 14:05 Speaker 3 And I think it really plays into, especially now when using technology, you know, deciding are you going to try to, you know, add actual exhibits to a remote deposition, just show it on the screen and it's being recorded and so you can always reference it back later on, but making that decision ahead of time so you're prepared and ready to go. 14:25 Speaker 2 Well, and the time to start preparing for the deposition is not when you set the deposition right, especially in more complicated cases. Right. The, the time that you're preparing for the deposition in an 18 wheel truck case is when you send discovery. Right. You need the logs of that truck driver, you need all the fuel receipts from that truck driver on that trip. And if you don't have those, you need to go compel those or figure out a way to obtain those so that you're ready to show the truck driver's logs in Oklahoma when his fuel receipts have him in South Carolina. 15:09 Speaker 2 If you wait until the week or the month before the deposition to start preparing for it, you're not going to have what you need and you're not going to be able to set them up to put your client in the best position. 15:22 Speaker 1 Yeah, I always try to think of these things strategically. And I start out by making a list of what are my objectives coming out of this deposition, by visualizing what would be the best possible outcome, what are the admissions that I want, what are the items that I need to prove up. And I have usually a bullet point list of 5 to 10 things that I'm trying to accomplish with this deposition. And I work my way backwards from there to build on the things you guys were talking about. Really. You've got four types of depositions, in my experience, that you can categorize most depositions into. You have fact witnesses, which are typically take the least amount of time to prepare for because you're just trying to get basic facts of what occurred. 16:09 Speaker 1 Now, sometimes we'll take a fact witness deposition just to make sure the story is what we think it is. And sometimes we truly don't know what they're going to say. You've got party depositions which are very critical to the success or outcome of the case, Corporate representative depositions, which typically take a lot of time to prepare for and ensuring you've got those lined up correctly. And then I think the most challenging depositions to take and that take the most time are expert witness depositions. So jumping into, let's say, expert witness depositions, what are some of the tactics you guys have found helpful in researching and preparing for those? 16:47 Speaker 3 Sure, Jack. So I think one of the big things for expert depositions is, number one, seeing if either you know yourself or your firm has, you know, ever dealt with this particular expert before. And so that's the first place to look. And then from there, I think, making sure you're kind of looking out for other cases or attorneys, you know, or groups that you may be involved in who have had opinions rendered by one of these experts. And so you can often find that they may have made conflicting opinions with what they said in your case. And that can obviously be extremely helpful as it relates to the actual topic area. It's really trying to do a deep dive and figuring out what the expert is saying and trying to become a mini expert on those exact opinions. Right. 17:33 Speaker 3 You don't have to know everything about whatever their area is, but you do need to know enough about whatever their opinions are to make sure that you can feel comfortable when you're locking them into their testimony and giving them to give up whatever you can towards your client's interest. So it's a lot of preparation on whether it's reading the actual materials that they're citing to, or finding other ones to rebut it, or contacting your own, let's say, conflicting expert, if you will, and talk to them about good areas to follow back up on. 18:05 Speaker 2 I think Neil hit it right on the head. I think that you're looking for as much intel as you can possibly get about this expert, and you're trying to get as much information as you can about their opinions and the basis. And so utilize your firm if they have a history with this expert. Utilize trial associations, whether they're local or state. If you're a member of those listservs or trial associations, you're sure to find somebody that's run up against them. And then there are like trialsmith, for instance, is super helpful for us at not only pulling experts, but finding out who all they've worked for, what courts they've testified in, who's hired them, have they been struck. 18:56 Speaker 2 And then once you obtain that information, being able to dive a little bit deeper by pulling that order, striking them or looking at some of the pleadings or the motions in a case where they were involved and there were some dahbear challenges. And so I the web is a great resource for us and I think that's the first thing we should do when we get an expert designated on the other side and we're thinking about taking their Depot. 19:27 Speaker 5 Zynda Law Group is a plaintiff's personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. Over the last several years we have paid millions of dollars in joint venture counsel fees to the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zynda Law Group on, please reach out to us at 800-863-5312 or email us@infodferm.com and we can set up a time to discuss your. 20:09 Speaker 1 What about the order of depositions? Because I know that's always something we're talking about in every case. Do you guys have any tips or tactics to use to decide what order do you to go in? You know, going expert first, then corporate rep, then fact witness? What are yalls thoughts on what order to take your depositions in? 20:28 Speaker 3 The common answer of it really depends on the case and so it's just looking at each one individually and seeing what makes the most sense. Generally speaking, I think you're probably going to want to get either fact witnesses or some party witnesses taken care of. But there are times when you may want to go ahead and get that corporate rep early on so that you can figure out what information is there and also what other documents you need to go get before you go take those individual depositions. 20:53 Speaker 2 I used to always first thing in if I have a commercial defendant I would take the individual or the employee that was responsible that we've sued. I would take their depo first, sheerly out of habit. I think that I've changed my mind after trying a couple of different tactics in different cases. And it all depends. But I really like the idea in probably 75% of these cases of thinking through that corporate rep topic list, the 30B6 list, so to speak, and really roundtable in those topics and doing that first and using that as a tool to figure out how you're going to conduct the rest of your discovery. And you also already have the company pinned down on everything, so you're just following the traps as opposed to trying to find the smoking gun. 21:55 Speaker 2 I found that it gives you a head start on what's important, what's agreed upon, who you need to talk to, and what information you still need to find. 22:05 Speaker 4 I agree that it just really depends on the particular case and what information you're most interested in getting right away. Whether you think you can get it through a fact witness or through a party. It just really depends. 22:17 Speaker 1 It just depends as most things we do. Right, right. Well, do you guys have any stories of maybe where a deposition went awry early in your career or a mistake you made that, looking back, was pretty embarrassing? Just so we can get that on the record. Perman on the Internet. 22:34 Speaker 2 I have too many to count, but luckily I intentionally just wipe them from memory so that I don't have an opportunity to get too embarrassed. I've made more mistakes than I could possibly count. And whether it's my first deposition, not knowing what objections were leading and what objections weren't, the one thing I would tell you, and it's not as much of a story as it is a reminder. Use the record and your opportunity to take a video camera in and record this deposition to your advantage. Right. 23:15 Speaker 2 If you have a video camera and you're a young attorney and you're taking a deposition and you, like I did six minutes into your fourth deposition, have the defense attorney screaming at you about how he knows that you're using the reptile and he's not going to allow it and it's some stupid book and you should know better. You'll learn after you start practicing all on the record. Take that opportunity to flip the script and use that record to your advantage. And don't be intimidated by somebody who's louder or more aggressive or more experienced. Come in there with the tools. 23:58 Speaker 2 I know Jack has always told me no deposition is worth taking if it's not worth videotaping so use that as another kind of comfort blanket to make sure that you have confidence going in there that you're going to be able to get what you need out of that witness. And it's your deposition, it's not anybody else's. 24:18 Speaker 1 Yeah. I think that videoing is a really great point that we didn't hit on earlier. But I know early in my practice, when I wasn't handling as large of cases as I handle now, the cost of videoing a deposition can be really high. You know, you're talking about 1,500, sometimes 2,000 per deposition. And we've had a lot of success in videoing the depositions ourselves. And I know Chrissy was kind of the tip of the spear for that in Colorado, and they were not used to that approach. So maybe, Chrissy, you could tell the story about how we pioneered doing that in Colorado. That both saves our clients money and allows us to do it on the more routine cases opposed to just the catastrophic ones. 25:01 Speaker 4 Yeah, sure. So in Colorado, it was just pretty new when it came to not paying a videographer. And so I remember when I started discussing it with defense counsel and putting together our case management orders, they were caught pretty off guard. And at first, they were trying to think of why they would not agree to allow us to not professionally videotape it. And they came up with just a bunch of excuses, you know, saying there's a possibility for the video to distort things, and there would be no way to check it against anything else. And were just successful in front of the court almost every time, you know, and saying that the rules don't actually require this. So, again, it goes back to really knowing the rules inside and out. 25:44 Speaker 4 The rules only require that there be a certified court reporter, which, of course, we would have in every case, so that we could match what's in the transcript to what's on the video. And once we made those arguments and again cited the rules, the courts really couldn't disagree with us. And it was a way to, like you said, save our clients a ton of money and then just be able to use those videos in mediation presentations or focus groups just to help our client even further. 26:15 Speaker 1 Neil, do you video all your depots? 26:17 Speaker 3 I do. Whether it be in some. I'll even still decide to go ahead and move forward with hiring a professional videographer, just depending on the case and size and importance of the witness and how important I think it is to have that. But in every single case, I'll either bring my own camera and it's still shocking to me how often I'll hear from the other side, oh, you brought your own. Yeah, I don't see that too often. And it's just still so shocking to me because it's so easy and it's extremely helpful for a number of reasons, but most importantly, just so you can have that on the record and you can evaluate other people in your firm, can. It can be used for other purposes later on and then eventually at trial. It's really helpful. 26:58 Speaker 3 I don't have a story for myself, but there's definitely. I know in other cases within our firm where take a look at how this witness reacted to our question. And that's exhibit A later on to the other side about, hey, this is how your client's going to react when we do this again at trial. And if they don't, we're still going to show this. And it can be extremely powerful. 27:21 Speaker 1 Yeah, especially if you have a defendant that dresses inappropriately, you know, swears a lot, just has a terrible attitude. It just does not come across as well in a written transcript opposed to a videotaped one, especially if they're threatened to beat you up. You know, it's happened to Joe several times. It just doesn't come across in a transcript. 27:41 Speaker 2 Well, yeah, I mean, I remember there was a trucking case where our client was in a coma and severely injured a couple years ago here in Austin. And were talking to a corporate representative in a corporate rep depot at our office of this trucking company. And for some reason, and I wanted to play into it, she was very concerned about her cell phone and it was out the entire time. And she kept taking phone calls during the actual deposition. And it wasn't like, hey, my wife's pregnant, I need to be on alert, or hey, I'm worried about childcare. It was, you know, like gossip with friends four or five times during the deposition. So she'd pick up the phone and because I was behind the camera, I would give her like a hand motion, like, go ahead. 28:38 Speaker 2 And we'd stay on the record while she's talking on the phone, like four or five times. And then we go back to talking about the policies of this defendant, having videos of nine year olds driving their trucks on Facebook and the serious nature of our injuries. And that if I didn't have a video on that, if I just had a transcript, it's really hard to express that to a mediator, to an opposing attorney, to a focus group, how that particular defendant is going to play in Front of a jury. But that video is priceless. They see that and they say, oh, no, we better resolve this, or the plaintiff really improved their position far in excess of where it was before that deposition. 29:24 Speaker 1 Well, it's really great, especially if the defendant is in jail and you get him in the orange jumpsuit and you have that videotaped. You definitely want to videotape that. I don't think I've ever had a case where I've regretted videoing it. And even if it's a bigger case, if you're doing a bunch of fact witnesses, occasionally in cases we'll do back to back, you know, nine to ten fact witnesses, don't be afraid to video it yourself, because you're not going to get that much more of a professional videographer. But I think in most big cases, you want to pay to do it professionally. And then in your more moderate cases, you might want to look at doing it yourself. I think that's a real good tip or tactic to look at. 30:02 Speaker 2 I also, as a jumping off point, going back to being worried about videoing the deposition, a lot of these videos, especially if they're key witnesses, I doubt you're going to play them in trial anyway. Right. I don't know that you want your lead witness or your doctor that's giving you causation and a surgical recommendation to be on video for four hours in the Travis county courthouse like I did. I think I had every single juror took a good, solid nap while I was playing the video. Right. And so use it for other purposes. Even if you're not going to be playing it at trial, Use it to remind yourself what they said, how they appeared to you and opposing counsel and a potential jury, and use it in focus groups. 30:53 Speaker 1 Well, what about preparing your deposition outline? You know, this is something that I know I struggled with early on in my career. Do you guys write your questions out or how do you prepare your outline for a deposition? 31:06 Speaker 4 I set it up. Well, first, before I came to Zynda, I think I thought it was mandatory that you had to start every deposition with the background information, you know, saying, can you please state your name? What's your address? Where are you from? And then it wasn't until I got to this firm that I realized that you should really be asking some of the most important questions right off the bat. We like to ask about the rules right off the bat, for example, because I think it does catch the other side so off guard because they're just tuned out during that whole initial portion. Because I Don't think I've ever had I've ever defended a depo where the defense attorney doesn't start with the kind of mundane background information in the beginning because they're really kind of just going through the motions. 31:51 Speaker 4 I feel like most of the time. 31:52 Speaker 1 Drive you crazy. It's so boring. Oh, my gosh. When I have to listen to a defense attorney go on for an hour and a half, and we haven't even gotten through high school yet, and the client is like 58 years old, you're like, this is going to be so grueling. You must be billing hourly. I hate those. 32:09 Speaker 2 Talking about your time on the JV football team and how often the coach put you in and if you ever hurt your shoulder for a practice or two, month by month, during your four years of high school. 32:22 Speaker 3 It's crazy. 32:24 Speaker 4 Yeah. Other than that, I like to put mine in different sections. As far as the main topics, like you said earlier, what's the most important thing I want to get out of this deposition? And then I kind of arrange it around that. As far as how I want to ask the questions, then it's gotten significantly shorter my outline over the years. At first I would write out every single question, but since then, it's more of like bullet points, more just general topics as opposed to specific questions. Because certainly a lot of times the answers can lead you in a different direction and you don't want to forget to ask something just because it's not right there in your outline. 33:07 Speaker 4 And then Joe gave me a good tip, which is always at the very end, I write, take a break and review notes just to make sure you have some time before you conclude the depot to go back and make sure you hit on everything and got the answers you wanted to the important questions. 33:23 Speaker 1 Yeah, I think that's really smart. And don't rush yourself through the deposition. Take your time. Make sure you hit all the topics you wanted to hit. And if I had one tip for newer attorneys is don't write out your questions. Practice your questioning technique, because that's really a skill. And if you master that, you can be great at just having topics. You know, I want to hit this topic, then that topic, and mastering the questioning techniques so you're not tied to a script or outline. I know it's really hard because you're nervous as a young attorney not to state a question wrong, but just trust yourself and follow the questions where they lead you, the answers lead you. Otherwise you're going to miss something really critical in the case, like a Bombshell factor that you could overlook. 34:07 Speaker 1 And I don't know how many times I've seen an attorney tied to their outline, and they missed the biggest part of the case just got mentioned, and it just went right over their heads. 34:17 Speaker 3 Yeah. The one counterpoint to some of that is I definitely like to write out some questions on a particular. Whether it's on the case law or a motion for summary judgment that I think will be forthcoming. I want to make sure I get certain terminology answered, and on those, I may have specific questions that I know I want asked and answered a certain way. But for the most part, I think you're right. It's likely to have stuff out there. And I think one of the biggest things, especially for newer attorneys, is following the witness and not getting tied down to what my next question is versus well, they just said something interesting. Let's go unpack that for a second. And we can always come back and ask the next question later. 34:53 Speaker 3 And so it's usually just coming back to the outline and checking off stuff that I had gone through. But I definitely think it's important that you may need some particular terminology that you want written down. 35:03 Speaker 1 Yeah, I think that's a really good point. Well, the deposition's over now. What do you guys do post deposition? Do you guys have any tactics or tips or things you like to do after the deposition is over? How about you, Joe? 35:17 Speaker 2 Yeah, I started doing this at your suggestion. We're running around taking tons of depositions in different cities every week, and sometimes they can get a little boggled when you're thinking about what happened and what else needs to be done. One helpful trick that I'm using not when the depo transcript comes in, but within about 12 hours of the deposition concluding, is I am essentially doing a voice memo to myself about how the deposition went, what discovery I still need to either get out or obtain in next steps about what we think we need to do in the case to get it from A to Z. And along with, you know, if that's your first interaction with the opposing counsel or what you thought of the witness, kind of some. Some general thoughts. 36:15 Speaker 2 But the best time to be able to go through that is right after the deposition. And I. I've made a bunch of mistakes by waiting too long, and then I either don't remember or I'm forced to read the entire transcript once it comes back in to refresh my memory. And so take good notes during your deposition about what additional discovery you need to conduct, who else you need to talk to, and Any other sort of game plan ideas you have on the case while they're fresh? 36:49 Speaker 3 Yeah, I think that's one of the biggest things I know what I do is I'll go through and have a highlighter with me there. And so while I'm taking my notes, any new document I know we don't have or I want to follow up to make sure we have highlighter, big box around that of that's going to be in my letter the following day about additional documents we still need or new discovery to go out. And then making sure you do that, like you said, while it's fresh on your mind, put a note in the file and getting whatever letter out you want to as soon as possible so you don't forget. 37:17 Speaker 1 Yeah, I'm a big believer in doing voice memos. I think that's a really effective, efficient way to get all your thoughts out and it doesn't get easier. I like Joe's rule of doing it in the first 12 hours. Because you wait a week, you're not going to want to do it. Things won't be fresh and you'll forget something. Well, guys, I think we're out of time. So before we go though, what's one or two tactics or tips you would leave our listeners with? 37:42 Speaker 3 One of the things I just mentioned, but making sure you're listening to the witness and making sure you're following where they're going, I think that's a big one for new attorneys. And the second is just enjoying the silence. And so, you know, a lot of times on the other side, after they answer a question, if you sit in silence and kind of keep looking at them, then they expect to continue to give you more information. They feel like they haven't answered your question. And so both in preparing your own client, but also taking the defendants, don't be afraid to just let that linger for a bit and hopefully get some more information. 38:14 Speaker 2 I would tell you that. And I used to actually write this down on a piece of paper before every deposition, but now I use it kind of as a thought exercise. I think it's crucial to understand why you're actually taking the deposition and what you want to accomplish. And if you haven't thought through why you're taking the deposition and what you need to get from that witness, then you are not in a position to take the deposition. So I think it would be a good exercise for anybody that's new to taking a deposition to go through that thought exercise, list what you need or the purpose, and then make sure. That before you pass the witness, you've accomplished what your purpose was. 39:00 Speaker 4 Yeah, I agree. Just having the really targeted objectives to get the information you're looking for and then also keeping sound bites in mind. And what I mean by that is having a specific question and a specific answer, you know, making sure you got that answer. Because sometimes you think they responded and they really didn't. Because, you know, if you're thinking of playing it in front of a jury, you're not going to want to play a 10 minute clip just to get the answer that you wanted in the first place. You know, it's nice to have that question answer really concise. And again, just listening to what the defendant or the deponent is saying. I know I was taking the deposition of a DUI defendant in one of my cases and I asked whether his license had ever been suspended or revoked. 39:45 Speaker 4 And he said no. And then I said, well, what about due to this crash? And he was like, oh yeah, it's suspended. And then, you know, he's. I asked if he had been driving since then. He said, well, you know, just, I have this special exception that allows me to go to and from work. And I thought about that and I was like, well, how'd you get here today? And he's like, I drove. And so, you know, you can really catch them in a lie sometimes. Or that's just a really good soundbite to have because you can show that he's still violating the law even as we sit here today, and he clearly doesn't care about it. 40:18 Speaker 1 Yeah. And the two tips that I would give is know the rules and over prepare for your first few depositions. I think if you know the rules and prepare well, you're going to do great in those. Well, and finally, as always, we have a book recommendation. The book that we'd recommend everyone check out is Advanced Depositions, Strategies and Practice by Philip Miller and Paul Sculptor. And I've got a second one I want to add to that is the Rules of Civil Procedure. I am shocked by how many attorneys that do what we do not know those well. And so I would get in the habit of reading that very regularly, especially when you take depositions. Well, guys, this has been a lot of fun. Thank y' all and hopefully the viewers or listeners rather got something out of this. 41:08 Speaker 1 Thank you for taking the time to listen to this episode of the Effective Lawyer. If you enjoyed this podcast, please take a moment to rate it 5 stars and leave us a review to get notified about new episodes. That are upcoming or been released, go to zdfirm.com/podcast Sign up for our mailing list.