The simple answer is be fully prepared. However, let's get a little more specific.
A great deposition happens when you do not argue with the defense attorney. You might ask yourself how that is even possible. It's entirely possible if you ask the right questions. It's also possible that if the defense attorney objects to your question that you simply accept that objection and immediately rephrase the question to make it less objectionable.
If you recognize that the defense attorney has an obligation to protect his client's rights and to preserve the record by making certain objections, you will soon recognize that the only questions they can truly object to in New York are ones involving “privileged information” and questions that are “palpably improper.”
If the defense attorney does not believe the form of the question I ask is correct, he can object but cannot direct the witness not to answer.
There are many very good experienced defense lawyers who will raise an objection and try to give a valid reason why the question is improper. There are many plaintiff's attorneys who would spend 15 minutes arguing with the defense lawyer about why their question is proper and should be answered.
I have found that tactic to be a total waste of time. It is inefficient and accomplishes absolutely nothing.
The better practice is to simply learn how to rephrase the question to get the answer you want without continued fighting with the defense lawyer. I have received many accolades from defense lawyers over the years for this strategic maneuver. Many defense attorneys come to the deposition prepared to do battle, especially when dealing with novice and inexperienced lawyers.
When I question a doctor at his deposition, if the defense attorney objects, I will simply withdraw the question and ask it a different way. If they object again, I will apologize, withdraw the question and then ask it a different way. I will continue to do this over and over again until the question has been refined so there is no longer any objection.
Personally, there is absolutely no need to fight with the defense lawyer about how specific questions are phrased. Despite my preference not to fight with the defense lawyer and my willingness to rephrase questions that are objected to, make no mistake. If the defense attorney is obstructing my ability to question the witness, they will be in for a fight. If they are refusing to allow the doctor to answer questions when I believe I have every right to ask specific questions, then we will likely call the court to ask for a ruling.
The more experienced a defense attorney is, the more likely it is that we will have a relatively pleasant and stress-free deposition.
Lawyers who fight over the way questions are worded and demand that the witness answer the specific question they have asked are, in my opinion, doing themselves a disservice and simply wasting their time.
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