Dallas Bar Association

Simple Steps to a Successful Deposition

by Kiera O’Connell Goral    

Whether you are a young attorney or a seasoned practitioner, depositions can be a stressful process. Many new attorneys are not well trained in how to take or defend a deposition and find themselves ill equipped in dealing with surprises. Some basic strategies can help any lawyer make the most out of any deposition.

Find Your Style. Benjamin Franklin once said that a “spoonful of honey will catch more flies than a gallon of vinegar.” Despite this simple truth, some attorneys treat the opposing party as their adversary at deposition. While this style may prove effective for some, acting in an overly assertive manner can remind a witness that you are the bad guy. The witness will not relax and will likely remember the advice they received in deposition preparation. By being nice, you can make an intimidating situation more bearable for the witness. When a witness is more relaxed, they may be less defensive and you may be more likely to get the answers that you need.

However, the nice guy approach does not work for everyone. Some attorneys are more comfortable taking a serious approach when conducting depositions. Finding a deposition style that works for you, based upon your personality, can help you be more effective in deposition. When you are more comfortable, you are more likely to stay focused on the task at hand.

Be Professional. Douglas MacArthur said that “you are remembered for the rules you break.” In the legal profession, however, a reputation takes a long time to build. You do not want to be known as the deposition troublemaker.

Read the rules before your next deposition. Both the Texas and federal rules of civil procedure prohibit speaking objections. Speaking objections are often deemed coaching. Examples include: asked and answered; objection, you can answer, if you know; calls for a legal conclusion; calls for a narrative; and misstates prior testimony. These objections remind the witness to consider earlier testimony and to answer based on their attorney’s suggestion.

Despite the fact that speaking objections are not allowed, some attorneys continue to make them. If you find yourself on the receiving end of these objections, briefly note your disapproval on the record. Unfortunately, it is difficult to get relief unless the conduct greatly interferes with the deposition. If you encounter a repeat offender, notice your depositions for video whenever possible. An aggressive attorney may behave better when on camera. Also, if you have to seek relief from the court, a video tells a much better story than a transcript. If you do not have a video, make sure that you note disagreeable behavior that may not appear on a transcript, such as shouting or hovering over a witness.

Stay Calm.“In cross examination, as in fishing, there is nothing more ungainly than a fisherman pulled into the water by his catch.” Keep this Louis Nizer quote in mind the next time you depose a difficult witness.

A difficult witness, not to be confused with a well-prepared witness, can make a deposition extremely frustrating. Some witnesses will not be affected by your charisma or professionalism. They will continue to be difficult. You will most likely not be able to break them. What you can change is your reaction. Take your time and keep your cool. An evasive witness is hoping that you will become discouraged and move on. If you argue with the witness or his or her attorney, you may lose your focus. Note your objection to the witness’ unresponsiveness and continue with your questioning. Continue to ask the question until you get your answer. Take a short break if necessary to regain your composure.

If the witness continues to evade questions and you are not getting answers, determine whether it will be worthwhile to move the court for relief. When making this decision, you will need to consider how the record will appear to a judge. Ending the deposition is something that should be done in only the most egregious circumstances. If you find this necessary, clear the decision with the attorney in charge of the file.

Preparation and confidence are essential to being successful in depositions. Being comfortable in your approach and knowing how to handle difficult situations will make you more efficient.  Improving deposition skills can lead to better support for dispositive motions and fewer surprises at trial.


Kiera O’Connell Goral, an attorney with Thompson, Coe, Cousins & Irons, LLP, focuses on first party insurance disputes and insurance coverage. She can be reached at kgoral@thompsoncoe.com.

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