Prepare an outline of the subjects you want to ask the deponent about at least one week before the deposition. Include subjects such as the deponent's education, employment and litigation background. If the deponent is a party to the case, read the complaint or answer the deponent filed in the lawsuit. Review any documents the deponent has provided in response to a request for production of documents and include any questions you want to ask about those documents in your outline. Review any answers to interrogatories and admissions the deponent has served on you and include any questions you want to ask about those discovery responses. Review the pleadings you have filed in the case and include any questions you can ask that will support your allegations or defenses in the case.
Review your outline the day before the deposition. Add any additional subject matter or questions that you missed when you initially prepared your outline. Print your outline. Go to bed early so you can get plenty of sleep and be well rested during the deposition.
Mark as exhibits any documents or things you intend to ask the deponent about during the deposition. Experienced litigators bring exhibit stickers to the deposition and pre-number the stickers "Exhibit 1," "Exhibit 2" and so forth. Having pre-numbered exhibit stickers on hand during the deposition will make it simple for you to mark exhibits during the deposition.
Tell the court stenographer or videographer at the deposition to swear the witness in. The stenographer will administer an oath and the deponent will swear to tell the truth, the whole truth and nothing but the truth. From this point forward, the stenographer will write down everything that is said during the deposition. If you want to take a break or say something that will not be included in the transcript of the deposition, instruct the stenographer to go "off the record." Be sure to ask the stenographer to go "back on the record" when you are ready to resume questioning.
Introduce yourself to the deponent and explain that you are conducting his deposition. Ask the witness if he understands that he is under oath and must tell the truth. Ask him if there is any reason, such as a medical condition, that he cannot tell the truth. Explain to the witness that you will ask him questions and that he must answer your questions with audible answers so the court stenographer can write his answers down. Explain that the witness cannot merely nod or shake his head in answer to a question or answer "Mm-hmm" or "Nuh-uh." Ask the deponent what his home address is and explain that after the deposition you will send him a transcript of his testimony. Explain that he will be required to review the testimony, correct any clerical errors and return the transcript to you.
Question the witness about his educational, employment and litigation background. These "softball" questions will help put both you and the witness at ease and will establish a rhythm for the deponent's testimony. Move on to substantive questions. Ask the witness the rest of the questions from your outline. Ask follow-up questions if the witness gives a non-responsive answer to a question.
Avoid asking questions that make assumptions or are vague, compound, misleading or so far removed from the subject of the lawsuit that the deponent's answer is unlikely to lead to more evidence in the case. The classic example of an inappropriate question is, "When did you stop beating your wife?" The question makes the assumption that the witness has beaten his wife. The question is vague as to the term "beating." If you ask, "When did you stop beating your wife and file for divorce?" the question is compound because it combines two questions in one query. If you ask, "Why does your wife say you beat her?" when there is no evidence that the deponent's wife ever said that, the question is misleading. If you ask about domestic violence in a breach of contract lawsuit, the question is irrelevant. Also, avoid asking questions that ask the witness to reveal confidential information between the witness and his attorney.