Every attorney who has ever taken a discovery deposition is guilty of it. Every attorney who has ever taken a discovery deposition has likely done it time and time again. Guilty of what? Done what?
In order to talk about a discovery deposition, I think you have to go back to the basics. What is the purpose of a discovery deposition? We can probably all agree the purpose is to learn important information about the case. The important information may help with preparing a defense or for prosecution; it may help with case evaluation; it may help with learning what the deponent may say if called at trial; and, the list goes on and on. It even helps in a discovery deposition to just see the deponent and to get an idea of how the deponent may present at trial. Everything that is learned and observed in a discovery deposition may be critical in the assessment of the case.
You must prepare for the discovery deposition. I think you have to know the issues that will require more attention. I believe it is important to have the list of topics, and sometimes even the specific questions, written down that you think are critical to ask and learn about at the discovery deposition.
Now, to the point. What has every attorney who has taken a discovery deposition been guilty of at one time or another? How about asking the questions and not listening to the answers? How about going through the written down questions to make sure they are asked and then moving on to the next question before diving into a specific topic and learning all there is to learn about it. Essentially, going through the checklist and being done before ever really learning the critical information about the case.
There is no question that a discovery deposition is a question and answer session. But, I think it is more than that. I think a discovery deposition is a conversation where an attorney has an obligation to learn as much as reasonably possible about the critical topics of the case. I think this requires digging in. I think it requires listening and learning. Not just asking questions for the sake of asking questions. Not just hitting the high points and moving on. You need to keep in mind, your client may be asking you detailed, relevant questions about what you learned when the discovery deposition is over. You need to be prepared for that one day when that deponent is sitting on the witness stand and ensure that you have done all that you could have reasonably done at the discovery deposition to prepare for the deponent's (and now witness') testimony. This is going to require you to listen to the answers to the questions; follow up to learn more; and, move on when you are reasonably satisfied with the response.
It's called the practice of law for a reason. I don't think anyone ever perfects it. With each deposition, discovery or otherwise, there is an opportunity to improve. It does not matter how long a person has been taking depositions or practicing law. The more you do it, the more you learn about ways to improve for the next deposition.
Tommy Santel is a co-founding partner of Parkerson Santel PLLC. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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