What Great Lawyers Write Down When Depositions End

Fatima Fokina

A deposition ends.

On the one hand, you could think: I took (or defended) a deposition. It’s over. I have to know the details of the case; the client is largely irrelevant. Why bother reporting anything to the client? So I won’t.

That’s the wrong way to think.

Instead:  I took (or defended) a deposition. It’s over. I spent the client’s money on this event. It’s the client’s case, not mine. So I’ll send a short report to the client about what I learned, my impressions of the witness, etc.

That’s the right way to think.

Some clients want detailed reports about what happened at depositions. So give that to them.

Other clients are happy with a very few sentences: “We deposed Jarndyce, plaintiff’s product manager, today. The deposition went well. Jarndyce admitted X and Y, which is what we were after. Let me know if you’d like more details.”

Good lawyers know their clients and send appropriate reports about what happened at a deposition.

But great lawyers make another set of notes immediately after a depositions ends.

Great lawyers record both what happened at the deposition and what did not happen.

A factual report is easy, and nice, and doesn’t strain you too much. It simply requires that somebody take notes (or remember what was said) during the deposition or read the transcript later.

But great lawyers are actually cognizant during depositions. Those lawyers have unspoken thoughts going through their minds. Those unspoken thoughts are not recorded in the transcript, and the thoughts are ephemeral. Wait even a few hours to record those ideas and those thoughts will vanish, never to resurface.

Immediately after a deposition ends — immediately; not after you travel home, or have dinner with the witness, or come back from the bar, or whatever —  immediately, write down the thoughts that occurred to you that will not appear in the transcript, and that you’ll have forgotten by tomorrow morning. Write that stuff down while you still remember things, in a note to yourself.

What am I talking about?

When you asked one question, the witness and opposing counsel became visibly nervous, but nothing came of this. At the next deposition, or when you’re sending out interrogatories, or when folks are reviewing documents, you should probe.  There’s something there; find it.

Or perhaps the witness evaded your questions on some topic. Or opposing counsel started objecting repeatedly. You sense that there’s something there, but you didn’t uncover it today. What’s up? Write a note that you should investigate topic A, so that you don’t forget this (which you will, if you don’t write it down).

On another subject, you were surprised by something. Counsel didn’t explore it, but the subject could veer in a funny direction in the future. Write it down: On topic B, check how it played out in the end, so you’ll know what’s lurking there.

On another subject, your witness was inadequately prepared. Make a note of it: I should have prepared the witness more thoroughly on topic C. Maybe you’ll actually remember to prepare the next witness more thoroughly on that point.

Something else triggers a thought that you hadn’t considered before. Write it down: I’d never before thought about topic D, but it strikes me that topic D could matter. Set up a call with a relevant witness to explore topic D.

The witness’s testimony opens up topic E. That’s a new line of inquiry. Don’t forget to look into it.

You didn’t get admissible evidence on topic F, but the topic is going to be important. Write this down, and don’t forget about it. This may not be immediately evident from the transcript, but it’s an important point.

Deposition transcripts are filled with dogs that are not barking. If you don’t record those silences, they’ll soon be gone forever.

Report to your client at the end of a deposition.

Of course.

But report to yourself about what you learned at the deposition that will not appear in the transcript.

Those ideas are crucial, and far too many lawyers forget about them.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].


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