Now's your chance to put your opponents and/or potential witnesses in the hot seat, have the oath administered, and ask them questions face-to-face.

If you've done what I teach you will have responses to your written discovery requests at hand and use them during the questioning. For example, if the deponent says "Red" to a question he said "Green" to in response to one of your interrogatories, you've caught him in a lie and can dig more deeply to get at the truth!

Depositions are usually taken at a court reporter's office but may be taken at the witness' office or even in front of a judge. The deponent (i.e., deposition witness) is placed under oath and responds to questions from both sides (both have the right to be present). Depositions may be taken at a location thousands of miles away using today's technology. Everything spoken is recorded and, in some special situations, a videographer may be hired to film the proceedings.

Your goal is to ask questions that will get at facts that are "reasonably calculated to lead to the discovery of admissible evidence" and, of course, what you're after is to prove or disprove what was alleged in the pleadings, because nothing else matters.

The same rules for direct examination and cross examination explained earlier are observed, but it's up to you to hold the line. Your opponent will try to see how much he can get away with, impermissibly cross-examining his own witness, for example, if you don't object.

Every spoken word is recorded, so be on guard to prevent interruptions or allowing more than one person to speak at-a-time, because the court stenographer cannot write down everything when more than one person is speaking. If the chatter cannot be captured by the stenographer, bad things can happen later when your opponent argues about what was actually said.

If your opponent or the witness does anything non-verbal, like drumming his pencil on the table or making threatening faces, this is easily fixed by saying, "Let the record reflect Mr. Dirtbag is drumming his pencil on the table and making threatening faces." That fixes that!

You are in control.

The court stenographer can (if you need, but you don't always need) create a deposition transcript that you can file with the clerk before trial to prevent parties and witnesses from later changing their stories.

Depositions let you control what people are going to say at trial (if you don't win before trial using my tactics). If they tell a different tale in court, you have the transcript of their prior sworn statements to wave in their face and discredit their trial testimony for the jury to see them for the liars they are.

"Were you lying then, or are you lying now?"

Don't take depositions until you know enough about the case to do a thorough job of questioning your deponents. If you don't yet know what your opponent's case is about, you can't know what questions to ask at a deposition. Winners do not rush to deposition! Winners get all the evidence they can using written discovery before taking depositions. Indeed, if you do as I teach you may not need to take depositions. They are expensive and time consuming.

In most jurisdictions you only get one bite at the deposition apple. You cannot depose someone again and again.

Statements made at a deposition are admissible at trial, because they were made under oath in the presence of a certified court stenographer!

There is nothing you can ask a witness at trial that you cannot ask the witness at a deposition before trial.

You should be able to win any "winnable" case before trial.

Do NOT write the questions you intend to ask! Just list the essential fact elements that were alleged in the pleadings and use your list to guide your deposition questions. Following a written script leaves no flexibility to adjust to the deponent's testimony. Know what facts you need, then trust your questions to fit the answers.

Don't be bullied by your opponent. Don't be bamboozled by an intimidating lawyer. Protocols for examining deponents are looser than at trial where Evidence Rules are strictly enforced, but civility and order remain imperative. If the other side begins to badger or object
to every question you ask, request a conference outside the room where the deponent cannot hear, then tell your opponent you will phone the judge if he doesn't back off and settle down. That usually does the trick.

If the other side continues to abuse the rules, say, "Let the record reflect that this deposition is terminated at the time I can file my Motion for an Order Controlling Deposition and have the assigned judge Order this deposition to resume with civility according to the rules." This will teach your opponent to behave himself.

When your motion is granted, resume the deposition.

Depositions are powerful tools if rightly used. They can also be an unnecessary waste of time and money.

Be polite, but don't get pushed around.

Here is a form to set the date, time, and place for a deposition.