Michigan Bar Journal - March 2020 - Best Practices - Tools for the Defense Deposition

Oct 13, 2026

Upload by Blitz

Tools for the Defense Deposition explains why deposition testimony can determine the outcome of litigation, including summary disposition and later trial strategy. The article guides newly sworn Michigan lawyers through effective deposition preparation, including early research, identifying needed testimony and witnesses, and planning pre-deposition meetings. It also covers best practices for witness handling during depositions, and the limited, rules-based circumstances when objections should be made and how to instruct a witness not to answer.

LanguageEnglish

CategoryLetters

FormatPDF

Pages3

Reading Time1 min

AccessFree to download

Best Practices

Tools for the Defense Deposition

Step 1: Preparation

Step 2: Deciding when and whether to object

Michigan Bar Journal March 2020 44 Best Practices Tools for the Defense Deposition By Amy M. Johnston and Erika L. Giroux deposition can be one of the most effective tools in the liti gator’s arsenal. A clean tran script from a crucial witness—friendly or hostile—could be the key to winning summary disposition for your client and avoiding the time and expense of trial. If your case does end up at trial, that same deposition transcript may be pivotal. So it is essential to remember that the important depositions are not only the ones that you take, but also the depositions that you defend. This article aims to help recently sworn-in Michigan lawyers understand key elements to deposition preparation, proper objections during depositions, and trial considerations. Step 1: Preparation As with most things in life, effective preparation is key to a successful deposition. That likely means re-familiarizing yourself with the facts of the case, any major unknownsin those facts or gaps in the timeline, any key disputes, the elements of the opposing party’s claims or defenses, and the law supporting your position. Start the research early. Develop your trial themes. Before any deposition occurs, know what testimony you need to prove your case and which witness will provide you with that testimony. A “Best Practices” is a regular column of the Michigan Bar Journal, edited by Gerard Mantese and Theresamarie Mantese for the Publications and Website Advisory Committee . To contribute an article, contact [Mr. Mantese at gmantese@manteselaw.com](Mr. Mantese at gmantese@manteselaw.com). Generally, you should plan to schedule a pre-deposition meeting with each witness shortly before the deposition. Timing is important, as the witness likely has other duties and responsibilities. Schedule close enough to the actual deposition so that the rules for the deposition and facts of the case remain fresh in the witness’s mind, but far enough in advance so the witness has time to internalize your guidance and ask follow-up questions. The goals of the meeting are to get a better idea of what facts are within the witness’s personal knowledge, further your understanding of the case, and identify in advance any issues that may require clarification. As for preparing the witness for the likely unfamiliar deposition setting, there are many ways to make certain the witness is ready. The following simple rules for the witness may serve as a foundation for your deposition preparation strategy. Listen to the question It can be easy for the back-and-forth ina deposition to become conversational, and for a witness to fall into the habit of thinking that he or she knows which question will be asked next. One of the most critical tasks for the witness is to slow down and consider the question thoroughly. Everyone involved in the process—from the examiner to the deponent and, ultimately, to the factfinder—has an interest in an accurate answer. You want to avoid having your witness confessing that he or she assumed the question was seeking “X” information, but on reflection, understand that it explicitly sought“Y” information. Proper preparation will educate your witness that this is a fact-finding process, not an informal conversation. Answer the question Remind the witness that he or she will be under oath to tell the truth and should, unless directed otherwise, answer questions truthfully and accurately. As a corollary, if the witness does not know the answer to a question, he or she should say so. Again, everyone involved in the process gains from accurate answers. While “I do not know”may make the witness feel uncomfortable, it is an acceptable response when accurate. Tell the truth Most importantly, remind the witness to always tell the truth, even if that truth [R]emind the witness to always tell the truth, even if that truth is “bad” or “inconvenient.”Lawyers can do quite a bit to rehabilitate bad facts; we can’t do much

FAQs

Under what circumstances may an attorney object during a deposition?

Michigan and federal rules allow objections only in two main situations: where the objection would be waived if used at trial (e.g., form of the question/answer, oath irregularities, or reporter qualifications), or when necessary to preserve a privilege or other court-ordered limitation.

Oct 13, 2026

Upload by Blitz