After twenty years of taking and defending depositions across federal and state courts, I've come to believe that the outcome of most depositions is determined before the first question is asked. Preparation is everything. The attorney who walks into the deposition room knowing more about the witness than the witness knows about themselves will almost always come out ahead.
Here is the preparation framework I use for every significant deposition, updated for the tools and resources available in 2026.
Phase 1: Witness Intelligence Gathering
Before you draft a single question, you need to understand who you're deposing. This means going well beyond reviewing their CV or expert report.
Prior Testimony Research
Search for any prior deposition testimony, trial testimony, or sworn statements the witness has given. Transcript databases, court filing systems, and your firm's internal knowledge base are all valuable sources. Look for inconsistencies in their positions across cases, changes in their methodology over time, and any prior impeachment by opposing counsel.
Publication and Public Statement Review
For expert witnesses, review every publication, conference presentation, and public statement you can find. Experts frequently take positions in academic or professional contexts that contradict the opinions they're being paid to offer in litigation. A well-timed confrontation with a prior publication can be devastating.
Social Media and Public Records
Don't overlook publicly available social media content, professional organization memberships, and public records. A witness who has publicly advocated for a position contrary to their deposition testimony has given you a gift.
Phase 2: Outline Construction
I use a three-tier outline structure for every deposition:
Tier 1: Must-Cover Topics
These are the non-negotiable areas the facts you must establish or the admissions you must obtain regardless of how the deposition unfolds. Write these down first and protect them. No matter what happens in the room, you will cover these topics.
Tier 2: Opportunity Topics
These are areas where you have a reasonable chance of obtaining helpful testimony or exposing weaknesses, but where the outcome is less certain. Rank these by importance and be prepared to skip lower-priority items if time is running short.
Tier 3: Exploration Topics
These are areas you want to explore if time permits and the witness seems cooperative. Don't sacrifice Tier 1 or Tier 2 topics for these.
Phase 3: Question Drafting
For critical areas, draft your questions in advance. This is particularly important for:
- Foundation questions for key documents
- Questions designed to lock in a position before confronting with a prior inconsistent statement
- Questions establishing the basis for an expert's opinion
- Damages questions requiring precise numerical answers
For other areas, use a topic-based outline rather than scripted questions. Over-scripted depositions tend to miss important follow-up opportunities because the attorney is focused on their next question rather than listening to the answer.
Phase 4: Document Organization
Every document you intend to use as an exhibit should be pre-marked, tabbed, and organized in the order you plan to introduce it. Have extra copies for the witness, opposing counsel, and the court reporter. Know your exhibit numbers before you walk in the door.
I now use LegalCinch's document management system to organize deposition exhibits digitally. The ability to pull up any document instantly during a deposition, without fumbling through a binder, has meaningfully improved my efficiency in the room.
Phase 5: The Day-Before Review
The evening before the deposition, I do a final review focused on three things:
- Re-read the witness's most recent statement or report
- Review my Tier 1 must-cover topics and confirm I have the questions I need
- Mentally walk through the opening sequence how I will establish rapport (or not), set the ground rules, and transition into substantive questioning
Preparation is the great equalizer in deposition practice. The attorney with fewer resources but superior preparation will outperform the attorney with a larger team and a bigger budget every time. Invest the time. It pays dividends in the room.
