I have taken and defended a good number of depositions. Preparing for deposition requires thoroughness, thoughtfulness, and not being tied to your question outline like a student actor reading a script. Whether you are “old school” or “new school,” there are many ways to enhance your deposition practice with litigation support software.
There are many effective ways to prepare for a deposition. Here are tactics I have used with and without technology:
Option 1: No Deposition or Litigation Support Technology
Discovery is maintained as paper in boxes or a document depository.
Documents from the repository are selected and copied for the deposition.
The lawyer attends the deposition with a trusted Redwell Folder under their arm.
The question outline is prepared on a yellow legal pad. More software friendly lawyers will use Word or Wordperfect for their outline.
This is a tried and true method that worked for lawyers from Clarence Darrow’s time to Gerry Spence. If you are organized and keep your exhibits in order, this is an effective way to depose a witness.
The downside: if you have a lot of paper exhibits, you can lose time wadding through a stack of paper if you want to take an exhibit out of order. Additionally, finding a document not selected as an exhibit you want to use in response to answer might require time to go off the record and check the document depository.
Option 2: Limited Use of Litigation Support Technology
Many law firms today use CT Summation iBlaze, LexisNexis Concordance, LiveNote or other litigation support software (LSS) to manage discovery. These are all fine tools with their own strengths in preparing for a deposition.
The “hybrid” approach is using litigation support software instead of a document depository. Searching for a document across a database is extremely faster than sending an associate attorney on a spelunking expedition to the document depository.
Lawyers and paralegals preparing for deposition can search for responsive exhibits in their LSS database. These searches might be based on authors, recipients or date ranges on emails, faxes, or letters.
Exhibits sets are then printed for the deposition and the rest of the process follows Option 1.
Option 3: Full Use of Litigation Support & Trial Presentation Technology
Going “full technology” is used by lawyers who have successfully deposed witnesses with Options 1 and 2. They are comfortable with technology and understand how to leverage it to their advantage.
As in Option 2, associate attorneys or paralegals search for deposition exhibits in the firm’s litigation support software. Documents selected for deposition exhibits are marked as a “Hot Document” or noted in the database.
Many LSS programs allow users to create folders, such as “Defense Witness” or “Plaintiff PMK.” Documents can be selected for witness folders as a way to organize exhibits.
While preparing deposition exhibits, attorneys can prepare their deposition outlines with linked exhibits in their litigation software. This organization helps focus the deposition and allows the deposing attorney to move beyond a yellow legal tab. Coupled with a real time feed from the court reporter, a lawyer can see their question outline and the witness’s answers at the same time.
Sophisticated techno-attorneys can conduct a deposition without paper exhibits. Instead of a Redwell Folder full of paper, exhibits can be labeled digital on a DVD. Digital copies can be given to both the court reporter and opposing attorney.
In CT Summation, this can be accomplished with a Browser Briefcase for non-CT Summation users or Summation Briefcase Format file (SBF) for Summation users. Either format can be provided to opposing counsel and the court reporter at the deposition.
Exhibits can be numbered in advanced in the litigation support program. The court reporter can mark the DVD/CD/External Hard drive with the exhibits as “Plaintiff Exhibits 1 to 37” or whatever is appropriate.
Conducting a paperless deposition requires trial presentation software to display the exhibits for the witness. This would include such products as Trial Director by inData.
A Note on Court Reporters
Court Reporters utilize technology with real time transcription, synced deposition exhibits and many other services. Lawyers can assist their court reporters by providing a key term list prior to the deposition, so court reporters are not trying to figure out how to spell complex scientific jargon, party names or other terms of art on the fly.
Lawyers can increase their effectiveness during the deposition with a real time feed from their court reporter (for example, LiveNote, CT Summation and other fine products). The deposing attorney can track answers as they come in, catch potential transcription errors and effectively compare prior answers for consistency from the witness.
For deposition review, ask the court reporter for a transcript with linked exhibits and synced video (if video recorded). Depending on your transcript review tool, these will have different names, such as LiveNote Evidence Format (LEF) or CT Summation Briefcase Format (SBF).
Linked exhibits are useful in checking on which exhibit the witness is discussing. More importantly, the associate or paralegal doing deposition review does not lose time jumping from the back of a printed deposition’s exhibits to the text.
There are many ways to take a deposition, be it with the Redwell or a laptop under your arm. What matters is to look at the tools your firm employs and find the best deposition strategy for you.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.