How an Attorney Successfully Defends a Deposition

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By: Bill Henry
PublishedMay 6, 2022
5 minute read

During a deposition, presenting a defense is as important as it will be during the trial. Everything you say will be recorded by a court reporter and become part of the legal transcript of the proceeding. This can come back to haunt you at trial. Read this article to learn about tactics that will come in handy when defending a deposition.

Table of Contents

  1. What is a Deposition?
  2. Successfully Defending a Deposition
  3. Preparation is Key
  4. Study the Opposing Counsel
  5. Prepare Your Witness
  6. Explain the Process
  7. Avoid Impeachment
  8. Making Objections
  9. Avoiding Waiver of Objections
  10. Instructions Not to Answer
  11. Motion to Terminate or Limit the Deposition
  12. Get Help Defending a Deposition

Need Help Defending a Deposition?

When taking a deposition, it is opposing counsel’s job to undermine your client’s position and therefore strengthen their client’s case. Your primary job in defending a deposition is to minimize any potentially damaging testimony by your client. The attorneys at Robinson & Henry have defended countless depositions in various kinds of matters. We are ready for whatever opposing counsel may throw at us. Call 303-688-0944 today to begin your case assessment.

white female attorney questioning white female witness in courtroom while black female judge looks on

What is a Deposition?

A deposition is a question-and-answer session conducted outside a courtroom, but the individuals being deposed are under oath.

Depositions typically have two goals:
  • to evaluate the client as a witness, and
  • attack damages and liability

Why is a Deposition Important?

Depositions are an important discovery tool that allows you to obtain information from a witness through questions and answers. For a visual infographic click here: Why is a Deposition Important 

You may use a deposition to:
  • learn the underlying facts of your opponent’s claims and defenses
  • determine the credibility of potential trial witnesses
  • authenticate documents for later use
  • support a motion or motion response
  • preserve testimony for a witness who may be unavailable for trial
  • create impeachment material
  • force admissions from the deposed party that support your theory of the case
    source: Depositions: Preparing for and Taking an Individual’s Deposition (CO)

Successfully Defending a Deposition 

Defending a deposition is a delicate balancing act. You want to protect your client’s rights—including privileges and trade secrets—without interfering with the deposing party’s right to gather information for their case. source: Depositions: Preparing for and Defending an Individual’s Deposition (CO)

An important part of defending a deposition is to minimize potentially harmful testimony for your client. Make sure your witness that is being deposed carefully answers each question AND limits his or her response to only the question being asked.

Preparation is Key

To the ill-prepared, a deposition can feel like stepping into a field riddled with land mines. It is your responsibility to educate yourself about your witness and ensure your witness is well-prepared for the deposition.

Make sure you understand:
  • how your witness fits into the case
  • all the facts he or she knows
  • which documents are relevant to your witness
  • what you hope to gain by taking the deposition
Make sure your witness understands:
  • the basic processes of a deposition
  • how his or her testimony fits into the case
    source: Discovery in Colorado § 7.3

Let’s look at how you can prepare yourself and your witness for a deposition.

Study the Opposing Counsel

When you’re defending a deposition, you need to anticipate the questions that the opposing counsel is going to ask. This will help you understand where you will likely have to make objections.

Robinson & Henry suggests reviewing opposing counsel’s LinkedIn page, online bio, or recent cases.

You can use this information to help your witness:
  • avoid tricks and traps from opposing counsel
  • remain calm during adversarial questioning
  • avoid volunteering information

Prepare Your Witness

Before defending a deposition, you should:
  • use clear, simple language to explain the deposition process to your witness
  • instruct your witness to tell the truth at all times
  • advise your witness to listen closely to the question and ensure that he/she understands it completely before answering
  • make sure the witness knows of his/her ability to read and amend the transcript
In addition, consider providing relevant documents for the witness to review, including:
  • pleadings
  • prior statements
  • affidavits
  • anything else that may help the witness prepare for the deposition
Explain the Process

The importance of keeping your composure when defending a deposition cannot be overstated.

Impress upon your witness how crucial it is that they remain professional and even tempered throughout questioning. Opposing counsel is hoping to get a rise out of your witness. Don’t let them take the bait.

Avoid Impeachment

Additionally, you’ll want your witness to understand the concept of impeachment. The opposing counsel will do what she or he can to impeach the witness or attack the witness’s credibility.

If the witness gives testimony at trial that is different from the testimony given during the deposition, the opposing counsel will use this against them.

Again, it’s important to underscore the importance of providing truthful and consistent testimony.

Making Objections

What Can I Object To?
You may make any of the following types of objections when defending a deposition:
  • Objections to the qualifications of the officer taking the deposition
  • Objections to the manner of taking the deposition
  • Objections to the evidence presented (e.g., to the form of the question)
  • Objections to the conduct of any party
  • Any other objections to the proceedings
How Should I Object?

When defending a deposition, any objection to testimony should be stated concisely and in a non-argumentative, non-suggestive mannerColorado Rules of Civil Procedure 30(d)(1)

Objections to Questions

It is sometimes appropriate to object to the form of a question when defending a deposition. This simply means that you are asking opposing counsel to clarify a specific point.

Specific objections to form include:
  • Compound (This is when the attorney asks two or more questions within one question.)
  • Hearsay
  • Relevance
  • Lack of foundation
  • More prejudicial than probative
  • Assumes facts not in evidence (speculative)
  • Ambiguous
  • Asked and answered (repetitive, cumulative)
  • Badgering/argumentative source: Presenting Evidence in Court, Jefferson County Combined Courts Self-Help Resource Center
Curing a Question

An objection can only be raised when an improper question is asked that can be cured. In other words, the question can be corrected. C.R.C.P. 32(d)(3)(A)

For example, let’s say opposing counsel asks a leading question. An objection would give the attorney an opportunity to rephrase the question.

Other examples of questions that can be cured include:
  • Leading
  • Compound
  • Vague
  • Calls for speculation
  • Foundation
  • Argumentative
  • Asked and answered
  • Misstates prior testimony
  • Assumes facts not in evidence
  • Outside of scope of expert opinion

After you object, “evidence objected to must be taken subject to the objections.” C.R.C.P. 30(c)

This means that the deposition continues after an objection is made. Therefore, the witness is expected to answer the question.

Avoiding Waiver of Objections

If you fail to object to a curable objection, the objection is waived. C.R.C.P. 32(d)(3)(B)

This simply means that you lose the right to object in further court proceedings.

Conversely, questions that cannot be cured do not require objections. Questions that cannot be cured go to issues such as relevancy, hearsay, and competency.

Instructions Not to Answer

When defending a deposition, you can instruct your witness not to answer the opposing counsel’s question for only three reasons.

Those reasons are:
  • to preserve a privilege, such as attorney-client privilege
  • to enforce a limitation on evidence directed by the court, and
  • to present a motion to terminate or limit the deposition pursuant to C.R.C.P. 30(d)(3)
Motion to Terminate or Limit the Deposition

Sometimes opposing counsel will ask your witness questions in bad faith, or in a manner to annoy or embarrass the witness. In this instance, you can file a motion to terminate or limit the scope of the deposition.

In these cases, the court may either:
  • Order that the examination be terminated
  • Issue a protective order under C.R.C.P. 26(c)to limit the scope and manner of the deposition

Get Help Defending a Deposition

Skillfully defending a deposition limits the damage that opposing counsel may inflict at trial. Depositions are crucial to many types of cases, and the attorneys at Robinson & Henry have experience with all types. Call 303-688-0944 today to begin your case assessment.

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