Burden of Proof: Deposition Tips Your Parents Taught You

Burden of Proof: Deposition Tips Your Parents Taught You – 20 Years On

By David Paul Horowitz and Katryna L. Kristoferson | NYSBA Journal Spring 2025

Twenty years ago, the March/ April 2005 Burden of Proof column titled “Deposition Tips Your Parents Taught You” was published in the NYSBA Journal.[i]

There have been many changes along the way, the most important likely being the promulgation of the Uniform Rules for the Conduct of Depositions,[ii] and the most recent being the rules adopted by Administrative Order 141/22[iii] that amended a number of court rules. And, as the era of the Rambo litigator recedes into distant memory, and with a judicial emphasis on attorney collaboration and civility, David’s impression, having practiced throughout that time (and for some time prior), is that deposition misconduct has diminished somewhat, and the tried-and-true strategies for conducting effective depositions have as much resonance as they did 20 years ago. Katryna’s impression, formed over her seven years of practice in what seems to be a new, or at least changing, era, is somewhat similar. Incivility at depositions doesn’t seem commonplace, but without the length of experience in practice to observe the change in trend, change can be hard to gauge.

Besides the deposition rules, there have been other significant changes to the deposition landscape. Presumptive limits on the length of depositions, new technology for marking and displaying exhibits and, transformative in its impact on attorneys’ professional and personal deposition practices, remote depositions. When was the last time you conducted a deposition in person, with all participants physically in attendance?

We thought it would be interesting to revisit and, where necessary, update the tips our parents taught us in light of the changes to practice over the last 20 years, and we have added some additional tips our parents taught us which, frankly, David had forgotten, and Katryna reminded him of.

For those of you who did not read the 2005 column, or who have forgotten the sage advice your parents gave you, here are the original tips, including one omitted chestnut.

‘You Catch More Flies With Honey Than Vinegar’

This is an oldie but a goodie and the one most often for- gotten. Witnesses either believe that they are there to “tell the truth, the whole truth, and nothing but the truth,” or believe you, as opposing counsel, are Satan’s representative on earth. Whichever of the two categories of witness you are facing, being nasty and unpleasant will not help you. Many attorneys believe, wrongly, that being a nice person can ruin a legal career. Nothing is further from the truth. Your parents were right all along, so keep the following points in mind:

Outside of the people attending the deposition, no one will ever know if you are nice (although the court reporter will remember, and may gloss over some of your mistakes, and correct some of your malapropisms, when producing the transcript).
Relaxing the witness is a good thing; engaging the witness in a conversation, on the record, is even better. Almost everyone is more giving and forthcoming when relaxed. Other than lawyers, everyone else in the world engages in conversations, not rapid-fire questions and answers (as your spouse or significant other no doubt often reminds you).
Fighting with the witness breaks the flow of your examination. It is difficult enough to remember to ask necessary questions and remember to follow up on new, relevant areas of inquiry without getting involved in jousting contests with the witness. Remember, it is your examination. Organized, well thought-out and clear deposition questions that elicit a series of non-responsive answers will hurt the witness at trial.
If your goal is to prove that you are smarter than the witness, you will lose an important advantage. Ninety-nine times out of a hundred, a witness comes into a deposition already believing you are smarter. This advantage is yours to lose. As one out of a hundred who believes she or he is smarter, 10 will get you 20 she or he is not.
On that point, remember when you’re questioning a witness who possesses knowledge or information that you, as a lawyer, cannot put before the court in an affirmation based on your own knowledge. While you may have a really good understanding of the subject matter, the deposition isn’t about proving your knowledge; it’s about obtaining that information from the witness.
When it is absolutely necessary to fight with the witness, remember, there is a record being made. Know when you are on and off the record and, when on the record, keep your words neutral (making faces and rude gestures will not appear in the transcript, but can still come back to haunt you). We both tend to preface our questions with “Sir” or “Ma’am,” just the way our parents taught us to when speaking to others. It is hard to argue you were not being polite when you addressed the witness this way.

‘Don’t Take No for an Answer’ and ‘Try, Try, and Try Again’

Actually, your parents meant to say, “don’t take ‘I don’t know’ for an answer.” While many witnesses believe that saying “I don’t know” makes them appear stupid and, consequently, will not answer that way (even when they truly don’t know), many other witnesses fall into a gentle pattern of answering many questions that way. Never, never accept this as the witness’s “final answer.” Remember your parent’s admonition to “try, try, and try again.” There are countless follow-up questions you can ask to elicit meaningful information:

If you don’t know the information now, did you once know it?
If you don’t know, who would know?
If you don’t know the name of a person who would know, is there a person with a particular job title or responsibility who would know?
Is there a record that has that information? and
If you don’t know of a record, who would know if there is a record that has that information?

This is an important line of questioning, especially if the witness produced happens to be a “know-nothing witness.” These are important factors to establish to support your application for an additional deposition from a party.

‘A Job Worth Doing Is Worth Doing Well’

While a mediocre deposition may not take as long as a superb one, once you factor in the travel time to and from the deposition and dressing the part (or combing your hair and putting on your Zoom shirt), why not hunker down and give it your all? Here are some almost inevitable benefits:

An organized, focused deposition invariably proceeds faster than one that is not and will help you obtain the testimony you need in a case where the witness is difficult.
With an organized deposition, you will have the exhibits you need at trial already identified, authenticated and ready to be admitted into evidence on a motion or at trial.
The witnesses will not resent your wasting their time and will be more likely to be forthcoming because you will appear to be in command of the relevant material.
Opposing counsel will tread more carefully with you for the remainder of the case (and any other case you have together).
If you do a shoddy job, your boss (or a trial judge someday) may actually read the transcript and realize you are a moron.

‘The Devil Is in the Details’

Washing behind your ears, tucking in the corners of your bed sheets and buttoning all the buttons on your shirt were a real drag as a kid, but aren’t you now glad you learned to do them? Depositions are the same. There are any number of mundane things you should do at a deposition that will contribute to its being a resounding success. Among these are:

Review the file and, when you find what is missing (and there is always something missing), attempt to fill in whatever gaps exist before the deposition commences and, if the missing material is crucial and cannot be obtained or replicated, try and adjourn the deposition.
Have all necessary exhibits organized (pre-marking them with the court reporter is a nice time-saver, especially in the era of remote depositions) and lay a proper foundation for the exhibit, on the record, so that the exhibit can be admitted into evidence at time of trial.
Follow up on new areas of inquiry that become apparent at the deposition. This is especially important if you have a script you are following; know when to deviate but always remember to come back to where you left off.
Don’t worry about finishing at a particular time or even on the day of the deposition, deposition time limits notwithstanding. If you ask relevant, well thought-out questions, following up where necessary, you will have a wonderful written record of the deposition. If you need more time, or an additional day, that record will support your application for additional time, so take your time and control the pacing of the deposition.
Learn as much as you can before the deposition commences. Don’t limit yourself to the material in your file. If there are technical issues, have an idea of the terms and concepts involved. How many of us rely on YouTube to instruct us in all things mechanical and technical? While you will learn a lot from your witness during the deposition, and often a witness will want to teach you, having a solid foundation before the deposition will be of invaluable help.

‘It’s Not All About You’

While we all think we are hot stuff, the deposition room is not a courtroom (or theater) for you to star in. The witness should be the focus. Strut your stuff somewhere else.

Consider wearing something other than your Armani suit and killer shoes when in person, and if conducting the deposition remotely, make sure you have an appropriate background (think the therapist’s offices in “Shrinking”). Try the Mr. Rogers- like approach, especially with an older, or less educated, witness. Wear a sweater (patches at the elbow help) and use a pen that costs less than $500.00. Not only will the witness relax, but you will feel more comfortable and not have to kick yourself after the deposition for losing your Mont Blanc.
Let the witness talk. Many lawyers’ greatest short- coming is that we are not (again as our spouses and significant others often remind us) good listeners. Work at it. Let there be a discernable pause after the witness has given an answer. You will be surprised how often the witness will then resume talking and give answers you would never have elicited by direct questioning. Remember, you are not there to testify, there is no jury present to hear what you say and mistake that for testimony, and you will have a clearer record when answers follow questions without four pages of attorney colloquy.
Show (or feign) interest in what the witness does and who the witness is. If the witness has a job, ask about the job. If the witness is a retiree, ask about what they do with their time. Let the witnesses present themselves as three-dimensional people. You can bet the attorney preparing the witness did not let the witness talk about these things, and the witness will be appreciative and, perhaps, more forthcoming.
Let the witness teach you. While you may know as much or more as the witness does about the machine involved in the case or the surgery the doctor performed, showing off for the witness will usually make the witness less forthcoming. Hold back for a while and see what the witness tells you. Of course, there is nothing wrong with, every once and a while, letting slip to the witness that you know something about the matter at hand.
We all have bad days. If you are having one, look for another attorney to take up the questioning to give you a chance to regroup (make sure you do not waive your right to continue questioning). Ask another attorney who is present if you forgot something or if there is something else you should go into. On rare occasions, an opponent will give you some assistance (and remember, a good record can serve your opponents’ interests as well as yours).

‘Early to Bed, Early To Rise . . .’

Perhaps nothing can put a group of inquisitive, intelligent and well-rested people to sleep faster than a deposition. What chance do you have if you are exhausted? Often, being refreshed and alert plays a major role in any successful deposition. Some suggestions:

Prepare ahead of time. Even if you are in bed for the proscribed time, knowing an important deposition is on the next morning for which you are woefully unprepared will make for a lousy night in bed.
You will daydream during a deposition; everyone does. The trick is to realize you are doing it and stop. Have the reporter read back the last question and answer to give you time to regroup and refocus.
If you are tired, or just bored, take a break. Take a quick walk outside or splash some water on your face; you cannot do your best work when you are drowsy or distracted.
Arrive on time (early is better). If you need to go into a second day, you are far more likely to get a second day over objection (be mindful of 22 N.Y.C.R.R. § 202.20-b(2), enacted Dec. 29, 2020, which limits depositions to seven hours absent prior stipulation or court order) if the record reflects that you started the deposition on time, not an hour- and-a-half after the scheduled time.
Be attuned to the others in the room. If opposing counsel is asleep, fine. If the witness is drowsy or punchy, ascertain if this is helping you (getting the witness to lower their guard) or hurting you (answers are unresponsive or make no sense). If it is hurting you, confer with your opponent outside of the hearing of the witness and suggest a break. The most dangerous thing is if the court reporter is asleep – you will have an incomplete or incorrect transcript (both are terrible).

‘Beware of Strangers Bearing Gifts’

We are all susceptible to the narcotic effect of sumptuous offices, free coffee and Danish and generous doses of flattery. Basic psychological principles say that gifts help disarm people; just think about the lobby of a car dealership. Graciously accept opposing counsel’s hospitality and pleasant chatter, but don’t forget that you are in unfriendly territory. Of course, when conducting depositions remotely, you are responsible for your own snacks.

Beware the jolly, friendly and outgoing witness. This person is not your friend, nor is she or he likely to be after the deposition. Your transcript will be full of unresponsive answers and meaningless chatter.
Beware the jolly, friendly and outgoing opponent. This person is not your friend, nor is he or she likely to be after the deposition. You will read with amazement a transcript of the deposition where most of the answers to your questions come from the attorney, not the witness.
Beware the overly friendly, chatty or unorganized court reporter. This person is probably not your friend, nor is she or he likely to date you after the deposition. Lord knows what will be in your transcript.
Beware the overly helpful witness, especially the overly helpful expert witness (an oxymoron if ever there was one). You will read a transcript wherein you were skillfully diverted away from your focus of inquiry to something benign or, worse, helpful to opposing counsel.
Beware the questions your opponent suggests after objecting “to form.” You will be amazed when you read the transcript to find subtle shifts in the question that lead the questioning down a fork in the road to nowhere.

‘Less Is More’

Over a lawyer’s career, the length of that lawyer’s depositions, all things being equal, will often graph out as a standard bell curve. At first, like a deer caught in the headlights of an oncoming car, a new attorney wants to get out of the deposition room as quickly as possible without highlighting their inexperience, and depositions tend to be over almost before they start. Next, with the experience of observing other, “more experienced” attorneys, and having been exposed to numerous areas and lists of (often irrelevant) questions, an attorney’s depositions balloon out, filling days and weeks. Finally, with the refinement of skills and the benefit of meaningful experience, an attorney’s questioning will focus like a laser on the crucial areas of a case, moving from one element of a cause of action (or element of damages) to another. Such a deposition can be surprisingly compact in time, while extremely satisfying in result.

Understand what you have to prove or find out from the witness before you start the deposition. Usually, a witness will serve to provide testimony for one or more elements of a cause of action, defense or item of damages. Your focus must be on obtaining this testimony.
Know when you have gotten a good answer and move on immediately to something else. In attempting to gild the lily, you will give the witness an opportunity to weasel her or his way out of the previous good answer.
Keep pedigree/biographical questioning to a bare minimum (other than what may be necessary to provide a foundation for the witness’ knowledge). What the witness studied in junior high school cannot possibly help your case, unless the witness is 14. When, at 4:30 p.m., you realize you still have to question the witness about the critical issues in the action, you will really be under the gun.
If co-counsel, or another opposing party, has the primary interest in proving a particular element of a case, consider deferring to that attorney for questioning in that area, regardless of where the parties appear in the caption. You can always ask any necessary follow-up questions after the other attorney has questioned the witness.
When you have obtained the testimony you need, stop. Continued questioning will afford the witness the opportunity to muddy the waters and, with skilled coaching by opposing counsel, recant beneficial testimony previously (and perhaps painstakingly) obtained.

‘Be Prepared’

Your parents, not to mention the Boy Scouts of America, were right, at least about being prepared. (And by the way, as we’re highlighting the changes in the last 20 years, that organization now goes by the name Scouting America.) Once you have a couple of depositions under your belt, you may be deluded into believing you can “wing” a deposition. It happens to all of us eventually. Sometimes you get lucky. More often, you don’t. Unless you and lady luck have an ironclad agreement, don’t wing it. Benefits of being prepared include: a good night’s sleep both the night before and after, the respect of all in attendance and steady employment. A few examples should suffice:

Visit the scene of the occurrence, if necessary (yes, leave the sanctity of your office, real or virtual).
Have case citations at the ready for issues on privilege and scope of the examination that are likely to arise.
Know the applicable rules governing the deposition, not forgetting to look at the particular orders and stipulations applicable in your case.
Familiarize yourself with terms of art and concepts involved in your case that are outside your experience.
Anticipate evidentiary problems likely to arise at trial and attempt to deal with them at the deposition.

‘Because I’m the Parent, That’s Why’

This is more a statement of fact than a helpful tip. While your parents may have been patient, and would explain things over and over again, there would invariably come a time when you, the apple of their eye, just didn’t, or wouldn’t, get it. Often there comes such a time (or times) during a deposition. It is now time to mothball tip no. 1 and let the witness and/or opposing counsel know that you are in charge. It must be made clear that you are not going to conclude the deposition until you get the answers and information you are entitled to from the witness. A few ways to do this without making your child, I mean the witness, hate you:

Acknowledge the witness’ incorrect/nonresponsive answer, and ask the witness to listen carefully as you repeat the question (and, better yet, have the court reporter read back your question so that the witness doesn’t think you changed the question), asking that the witness give a responsive answer.
Read back, verbatim from your notes, the prior answer given by the witness that you are now referring to and, when the witness or attorney disputes it, have the court reporter read it back. You will be surprised to find you need to do this only once or twice before the witness and opposing counsel believe anything you say about their prior testimony.
Don’t make the mistake of going off the record when the going gets tough. First, even the most obstreperous attorneys will temper their remarks when a record is being made and, second, if opposing counsel or the witness is acting improperly, having that on the record can be helpful later on.
Don’t be afraid to take a break from the deposition to obtain authority for the position you are advocating, either by calling someone for information or checking your cellphone or laptop. If we may digress for a moment, David’s 2005 column stated, “for those of you who don’t yet have the entire N.Y.S.2d on your Palm Pilot.” How quaint. You can, and should, research any new issues during lunch or on a break.
Never call the judge unless you absolutely must and never fail to call the judge when you absolutely must. Very often, the ogre who has been tormenting you for the last hour-and-a-half at the deposition will turn conciliatory and explain what a big misunderstanding it all was when you actually call (as opposed to whining that you are going to call) the judge. I don’t think there is a single judge who relishes taking these calls but, when called upon to do so, most listen patiently and make a ruling. Note that the decisions are not always correct, and you are in a bit of a bind when the judge orders you to do, or stop doing, something that you must do, or not do, to successfully complete your deposition. Having “charted your course” by calling for a ruling, you are now obligated to follow it.
Finally, remember you are not without recourse if the witness or your adversary is obstructing your deposition or behaving inappropriately.[iv] Despite the changes we have observed, not everyone is always on their best behavior. Help is available, whether in the form of a protective order, sanctions, judicial supervision of the deposition or other court intervention. No one should keep you from getting the properly discoverable information

Conclusion

None of us can become skilled lawyers without help, whether from law school professors, colleagues, judges or YouTube. But always remember that the first, and often best, advice you received came from your parents, long before you even thought about being a lawyer.

Please see NYSBA.com for the full article.

[i] For access to prior articles and editions of the Journal, see https://nysba.org/nysba-journal-archive/.

[ii] See 22 N.Y.C.R.R. § 221, added Aug. 16, 2006, effective Oct. 1, 2006.

[iii] See https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-141-22.pdf.

[iv] See Constantina Bacopoulou DDS PC v. Carnegie Dental P.C., 2023 N.Y. Slip Op 32085 (Sup. Ct., N.Y. Co. June 20, 2023), wherein the court determined a motion by plaintiff’s counsel that sought sanctions against the attorney for defendants for, inter alia, alleged misconduct and time-wasting during a non-party deposition.

Please see NYSBA.com for the full article.