Seven Deadly Sins of Taking Depositions (and How to Avoid Them)

Depositions are where good cases can get stronger and weak ones get exposed. And it doesn’t matter which side of the case you have.

But even strong cases can suffer when the attorney taking the deposition falls prey to bad habits. Worse, the opportunity to discover weaknesses can be lost.These seven deadly sins of taking depositions apply whether you’re a young associate or a trial veteran—and ignoring them can have consequences you may not see until it’s too late.

Sin 1

Inadequate Preparation

Preparation is the lifeblood of taking an effective deposition. Too often, attorneys rely on cursory file reviews and generic outlines, assuming they can "wing it" or lean on experience. But depositions reward those who’ve done the heavy lifting: knowing the case facts cold, anticipating the deponent’s defenses, and preparing layered questions that box in the witness.

Effective deposition preparation isn’t just about reading pleadings and drafting questions. It’s about mastering the broader case narrative, identifying weak points in the opposing side’s position, and reviewing prior statements or documents produced. If you're taking a deposition and realizing you've underprepared, it may feel like a "D'oh!" moment. Better to have it during your preparation than while the court reporter is capturing your floundering on the record. 

But it’s not just about knowing the facts. It’s about knowing your objective. Are you taking the deposition for discovery? To lock in testimony for trial? To box the witness into a corner on a key issue? To create video clips for mediation? The answer informs not just your questions, but your entire strategy—from tone and pacing to exhibit selection and sequencing. Always ask yourself (and your colleagues if possible) during your preparation: “What would success look like by the end of this deposition?” Without that clarity, you risk questioning aimlessly instead of building a focused record that advances your side of the case.

While you can use technology to help stay organized during preparation, that is not critical. What is critical is to prepare with purpose. It’s the difference between a deposition that checks a box and one that moves the needle.

Sin 2

Overlooking Nonverbal Cues

A transcript won’t capture a smirk, a fidget, or a long pause—but as the examining attorney, you can, and you should. Nonverbal signals often reveal hesitation, discomfort, or deception. Yet many lawyers become so focused on their questions that they forget to watch the witness.

In-person depositions allow you to see the full picture: posture, gestures, eye movements, and reactions to documents or uncomfortable questions. To capture this for later use in the case, it is strongly recommended that you videotape every deposition—not just the virtual ones. Sure, it adds cost, but the payoff can be huge: you can capture key moments and create devastating video clips for replay at mediation or trial. Plus, nothing keeps witnesses honest like knowing their every blink is on camera. Your client might balk at the expense but remind them it’s the only way to show the squirming or belligerent witness that will move the needle for you at mediation or trial. Check out depositions.com for a free trial of their easy-to-use video clip tool. 

Sin 3

Rigid Questioning

Great depositions are dynamic—not just a recitation of pre-written questions. Attorneys who grip their outlines too tightly miss opportunities to explore unexpected admissions or probe weak points as they emerge.

Depositions often take unexpected turns—witnesses offer surprising admissions, contradict earlier statements, or reveal gaps in their knowledge. Effective attorneys adapt in real time, using open-ended follow-ups and circular questioning techniques to lock in damaging testimony or expose inconsistencies. Your outline is important, but don’t let it blind you to emerging opportunities that can turn a routine deposition into a case-defining moment. Think of your outline like GPS—you can ignore it while you detour down a more interesting road that wasn’t originally on your map.

Exercising this kind of flexibility draws on our natural curiosity. It requires listening and being ready to go off script when the witness opens a door you didn’t anticipate. One approach to be prepared for these opportunities is to categorize your lines of inquiry into "must ask," "should ask," and "nice to ask." This allows you to shift focus when an unexpected path opens up, while still ensuring your core themes are covered.

For example, in a product liability deposition, a corporate witness mentions an incident database in response to a routine question about document retention policies. That unexpected response wasn’t in the outline, nor had any database been produced in discovery. Recognizing the opening, the attorney explored it further, ultimately discovering patterns of incidents in the database. That discovery played a key role in resolving the case. The lesson? Flexibility isn’t a detour from your plan—it’s how you find the shortcuts that win cases.

Sin 4

Poor Time Management

Even when you think you have plenty of time, it slips away faster than you expect. Attorneys who mismanage deposition time often find themselves racing through critical topics or skipping important areas altogether.

In jurisdictions that impose time limits—such as the seven-hour limit under FRCP 30(d)(1)—careful planning is essential. Break your outline into time blocks, and set internal benchmarks for when you need to transition to key topics. Leave room for re-cross or unexpected detours. Simple technology tools like timers can help track progress without disrupting the flow of questioning. Running out of time isn’t just frustrating, it’s one of the most preventable self-inflicted wounds you can suffer.

And make no mistake—the clock isn’t just a suggestion. It’s a hard limit, and the defending attorney knows it. In one commercial dispute, the examining lawyer let the deposition drift off-schedule, with some key topics not covered when the clock ran out. The defending attorney—whose witness had been on the ropes—declared the deposition over, invoking the rule without hesitation. The examining lawyer was forced to file a motion to reopen the deposition, with attendant briefing and a hearing, at significant expense. Though the court granted one additional hour, the damage was done: the witness had weeks to regroup and prepare, and the added hour yielded nothing of value. The lesson? Control the time before it controls you—or worse, hands a tactical advantage to the other side.

Sin 5

Losing Your Temper

Depositions can get heated—but if anyone loses their cool, it shouldn’t be you. Witnesses may be evasive, opposing counsel may be obstructive, but reacting emotionally plays right into their hands.

A deposition is part performance, part precision. If you lose control of your emotions, you risk looking unprofessional, feeding into witness narratives, and creating a transcript—and video—that may not reflect well on you before a judge or jury. Yes, your frustration will come through loud and clear on the audio if the deposition is being videotaped, and no, sounding like you're auditioning for a courtroom drama isn't a good look. Develop techniques for managing stress—pause the deposition, step out for a break, or channel your inner poker player. The most dangerous weapon in the room is your calm.

In a business dispute, the examining attorney grew visibly irritated when the witness repeatedly claimed not to understand what was meant by the term “photocopier”. The tone of the questioning shifted from professional to accusatory, and the transcript—paired with video—captured the attorney’s mounting frustration. When the deposition excerpts were later played at a mediation, the attorney’s anger overshadowed the witness’s evasiveness, allowing opposing counsel to argue that the witness had been bullied and badgered. The lesson? No matter how obstructive the witness or defending counsel becomes, you can’t win an argument when you’ve lost your cool—but you can lose one.

Sin 6

Allowing Speaking Objections and Coaching

While improper objections technically fall on defending counsel, it’s your job to spot them and shut them down. Speaking objections and coaching through objections corrupt the deposition record and subtly influence the witness.

Under FRCP 30(c)(2), objections must be concise and non-suggestive. When opposing counsel starts coaching, don’t ignore it—object after each one to create a clean record. If it persists beyond three or four instances, you’re well-positioned to halt the deposition and get the judge on the phone. To be prepared, check with the court before the deposition and find out which judge will be handling emergency discovery disputes that day. It’s better to know and not have to call than be caught scrambling for a courtroom directory while opposing counsel keeps coaching. Policing speaking objections isn’t confrontational, it’s protecting your examination from being hijacked.

Consider a deposition in a commercial dispute where defending counsel began inserting commentary into “form” objections—phrases like "if you remember" or "calls for a document that speaks for itself." The examining attorney initially ignored these, hoping to avoid confrontation. But over the course of the deposition, the witness’s answers became increasingly non-responsive, clearly reacting to the cues from their lawyer. By the time the examining attorney objected, the pattern was well established—and the record muddied. It’s better to nip it early. Object after each improper coaching comment, state clearly on the record that it’s improper, and be ready to stop the deposition and seek court intervention if necessary. The longer you tolerate it, the more the witness—and opposing counsel—will push the envelope

Sin 7

Neglecting Exhibit Management

Nothing kills the momentum of a deposition faster than fumbling with exhibits. Disorganized documents, misnumbered tabs, or chaotic file sharing not only appear sloppy but also provide the deponent unnecessary room to stall and disrupt the flow. Plus, it also runs precious minutes off the clock.

Effective exhibit management is a key part of controlling the deposition. Seasoned attorneys prepare an exhibit index and check off each document as it is introduced. Providing a copy of the index to the court reporter is more than just a thoughtful gesture—it demonstrates organization and earns goodwill from the professional tasked with capturing the record. Bringing extra copies of exhibits for opposing counsel further reinforces an attorney’s professionalism, signaling preparedness and attention to detail. It also eliminates the need for opposing counsel to read the same document with the witness.

In a commercial contract dispute involving multiple amendments and side letters, an examining attorney neglected to pre-mark exhibits or arrange them by topic. As a result, each document introduction became a disorganized scramble, wasting time, and giving the witness and defending counsel opportunities to stall, object, and confuse the sequence. The deposition lacked flow, the witness remained on the offensive, and the transcript reflected more administrative chaos than substantive examination.

By contrast, attorneys who arrive with exhibits pre-marked, logically sequenced, and supported by a clear, check-off index maintain control of the pace and the narrative. Providing extra copies to opposing counsel minimizes delays and reduces opportunities for procedural objections. In short, streamlined exhibit management keeps the witness focused, the court reporter happy, and the examining attorney in control.

Bonus Sin

Ignorance of the Rules

Here’s one more. Perhaps the most fundamental—and most avoidable—sin is a lack of familiarity with the rules governing depositions. Attorneys who do not know the applicable procedural rules cannot effectively enforce them, and they certainly cannot expect the other side to play by them.

Deposition rules are not merely formalities; they are the framework that ensures the examination is both protected and enforceable. Time limits, the permissible scope of questioning, the handling of objections, and even exhibit procedures can vary widely depending on jurisdiction, local court rules, or standing orders. Experienced attorneys make it a point to review these rules before every deposition. Some will create their own quick-reference guide to keep handy for the deposition.

In a cross-border breach of contract case, an attorney neglected to confirm whether the local discovery rules imposed narrower limits than those in her own jurisdiction. Midway through the deposition, defending counsel objected, claiming the line of questioning exceeded the allowable scope under the local rules. The examining attorney, caught off guard, was unable to respond effectively on the record, which led to confusion, delays, and ultimately, the need for follow-up motions for extended depositions. When the motion was denied, it resulted in strained client relations, additional costs, and a weakened position.

Attorneys who master the rules not only avoid embarrassing missteps, they also gain a tactical edge, allowing them to enforce the deposition framework proactively, challenge misconduct when it occurs, and ensure the examination stays focused and aligned with their goals for it

Conclusion 

Avoiding these deadly sins isn’t about perfection, it’s about discipline. The best deposition takers are those who approach every examination with structure, flexibility, and professionalism, no matter how contentious the witness or opposing counsel becomes. But even if you master these skills, overlooking the rules of the road can still derail your deposition. Know the rules, use them to your advantage, and you’ll not only avoid these deadly sins, you’ll take control of the deposition from start to finish.

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