The most important deposition you will take is the deposition of the opposing party. Getting him to make the right admissions can secure your case and sink his. How do you prepare for it? Consider the following.
Learn everything you can about the opposing party. Do your due diligence and find out everything you can about the opposing party. Do a background search on him to see if he has a criminal record. Do a Google search to see if he has his own website or blog or if he is the subject of a chatroom or has been written about in an article. Do a litigation search to see if he has ever sued or been sued before. If he has, track down any depositions he gave or answers to interrogatories he signed. Do a bankruptcy search to see if he has ever filed for bankruptcy. If appropriate, get his medical, employment, IRS, social security, medicare and military records.
Get all the records and prepare a chronology. Get all the relevant records, whether they be contracts, handwritten notes, or medical records, and put them in chronological order. Then prepare a chronology summarizing these records. Put the chronology and all the records referenced in the chronology into a binder. This will help you gain an appreciation of everything that has occurred and the significance of the various events and documents.
Consider what you hope the opposing party will say. You need to go into the deposition of the opposing party as you would go into any deposition, with a plan of what you hope to get him to say. Depositions serve to gather information. But more importantly, they serve to pin down witnesses and to procure admissions favorable to your case and harmful to theirs. But before you can secure those helpful admissions, you have to decide what admissions you wish to procure. To do that, look at the jury instructions to see what you need to prove and what the other side needs to prove. Then consider what admissions you could elicit that support your position or undermining theirs.
For example, if you represent the defendant, you would try to get the plaintiff to admit to facts that show he does not meet one of the elements of the cause of action he alleges in the complaint. Alternatively, you would try to get the plaintiff to admit to facts that support one of your affirmative defenses. Whatever questions you ask, start with figuring out what you want the opposing party to say and then draft an outline that attempts to elicit that information.
Prepare a detailed outline for the deposition. After you’ve gathered all the facts and understand how the law applies to those facts and the allegations and affirmative defenses in the complaint and answer, then you’ll be prepared to draft an outline for the deposition.
Prepare your outline similar to the one you would prepare for trial. In fact, the more you think of this deposition as if it were trial, the more clear, the more concise and the more penetrating your questions will be.
Divide the outline into sections, with each section addressing a specific point or issue you want the opposing party to address. For example, you would have a section on the party’s prior litigation (if you are aware, for example, that this is his third personal injury suit).
When addressing a given topic, start with general questions, and proceed from there to asking more specific questions, until you focus on the specific issues you want the deponent to discuss. Make sure your questions are simple and only contain one fact per question. And most importantly, ask as many leading questions as possible, as you are allowed to do when deposing the opposing party. You want your questions to tell the other side the answer you are looking for and you are hoping that he will agree with you as much as possible.
When preparing for the opposing party deposition, take the time to learn everything you can about the party and about the facts and law that relate to the litigation. Once you’ve gathered and digested all this information, take the time to think through what you hope to get the other side to say and prepare an outline aimed at getting the admissions you are looking for.