Have you ever had to press garlic for a recipe? Or put together a Swedish bookshelf, purchased from a Swedish superstore? Yes, you have – and you may have succeeded, so long as you had a garlic press, or the bag of special Swedish tools respectively. But what if you don’t? Yikes. An easy part of the job becomes hard; your likelihood of failure increases, substantially.[2]

Practicing law is often the same. Certain tasks are very complicated. Reasoning, analysis, complex drafting, making hard things simpler for busy clients to understand – not easy stuff. But with the correct tools, forms, checklists, and honed skills, you can render some of the harder tasks easier, allowing you to focus your time, smarts, and passion on the really tough part of the assignment.

Now, this is not to say the right tool makes for a perfect end result. Preparing Mom’s classic lasagna is no slam dunk, even if you purchased your garlic press from the high?end kitchen store. And the Swedish bookshelf, even with the complete set of tools, well . . . next subject.

So in the first of a long series, we are circulating our best checklists, scripts, do’s and don’ts, and the like. Our first: the introductory matters, opening scripts, and initial questions (word?for?word) to use in any deposition. Why try to remember all the usual opening stuff? (BTW, you never will – there are twelve pages of opening questions and tips, each of them serving a unique purpose, as set forth below). Why scramble the night before the deposition, writing out introductory things (for the nth time), taking you away from preparing for the substance of the deposition, such as key dates, words, thoughts, and documents? We hope that after you read this article, such exercise will be a thing of the past.

Below you will find the following:

• In case you need more convincing, a preamble of classic deposition errors, made in the first minutes of the deposition, due to the lack of a comprehensive, word?for?word script of introductory matters and questions.
• The script: a comprehensive, word?for?word list of every opening question and introductory matter for your deposition.[3]

But wait, there’s more!

• Virtually every deposition deals with documents. But before asking about the substance of a document, ask about its history and minutia – who drafted it? Were there prior versions? Did other people work on it? For how long? Did the deponent ever make notes on it? Or on a prior draft? And where are those notes today?
• So as your added bonus, we include “The Forty-One Questions to Ask About Every Single Document in a Deposition.”

We hope this is helpful to you.

Part I: Classic Deposition Errors –

Often Made in the First Minutes of the Deposition

These have happened to all of us (or a colleague we know) when taking a deposition:

• You ask the deponent if she has ever been deposed before, but forget to ask if she has ever testified at trial. Thus, you fail to obtain some good information on the deponent. Worse, you don’t know to obtain a trial transcript from some old case to reveal how the deponent holds up (or breaks down) under cross-examination.
• You ask the deponent how he is feeling that day. He says, “fine.” But you forget to also ask if he is taking any medication. Halfway through the deposition (or afterward, such as when the “read and sign” comes back), you learn the deponent was medicated that day. Or as high as a kite. The deposition is more or less worthless. You probably have to take it again. And you have to explain to the client why it has to pay your billable rate to prepare again, and also take the deposition again (and pay for the new transcription expense) – because you didn’t have a script of opening questions covering this point.