The Two Most Common Deposition Errors by Attorneys

May 7, 2007 by Michael Law
Filed under: Lawyers

One of these two errors I observe most often in plaintiffs’ lawyers, the other in defense lawyers.

Plaintiffs’ Lawyers Perhaps it’s because plaintiffs’ lawyers aren’t paid by the hour that some don’t do enough preparation before a deposition begins. This is known in the trade as “winging it,” and it doesn’t work well at depositions, even if a lawyer has so much style that an outsider might mistake it for substance.

Defense Lawyers Perhaps because defense lawyers are paid by the hour, they often have the opposite problem: preparing too much. To be fair, it’s not the preparation that’s the problem, it’s the way the preparation–which usually takes the form of a lengthy outline–ties the lawyer down to a single way of thinking, thereby preventing him from following the witness down potentionally fact-filled alleys when the witness unexpectedly turns in those directions. Glued to his outline, this lawyer couldn’t wing it even if he tried. The result is that a good opportunity to move the case forward is wasted.

I don’t mean to suggest that outlines are unnecessary. To the contrary, outlines are a recommended means of preparing for a deposition. You just have to know when to cast them aside.

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