Seven Deadly Sins When Defending Depositions
Depositions are one of the few moments in litigation when an attorney has a front-row seat to the unraveling—or fortifying—of a case in real time. The role of defending counsel isn’t glamorous, but it's essential.
Done well, it shields the record, protects the client, and limits future damage. Done poorly, it invites disaster—often with your own fingerprints on it.
Here are the seven deadly sins of defending depositions, plus a bonus pitfall that can quietly kill your case if overlooked.
Sin 1
Winging It: Failing to Thoroughly Prepare the Witness
Nothing sabotages a deposition faster than superficial witness preparation. Effective prep isn’t just a document review—it’s behavioral coaching, legal education, psychological conditioning, and tactical rehearsal. And yes, it takes time.
Skipping Mock Exams
There’s no substitute for live practice. Witnesses who haven’t been stress-tested by mock examination will inevitably stumble under pressure. Roleplaying exposes habits, gaps, and vulnerabilities before the real show begins.Ignoring Document Familiarity
Every significant document that might surface in the deposition should be reviewed with the witness—even those that hurt your case. Surprises are rarely good, and preparation with the witness lets you control the damage. Even if the witness isn’t your client, there’s little risk in having them review materials; you’ll gain more than you lose.Glossing Over the Deposition Process
Many witnesses—especially first-timers—don’t understand the mechanics. Who’s in the room? What do objections mean? What happens if they don’t know the answer? Explain it early (and often) to reduce confusion and panicked responses.One Size Does Not Fits All
Every witness has different needs. Lay clients, in-house counsel, experts, corporate reps—they all require customized coaching. A “standard prep session” is malpractice dressed as efficiency.
Sin 2
Sleeping on Your Witness
Your role doesn’t stop when the record starts. Watch the witness. Read their energy. Manage their stress. And most importantly, intervene when it matters.
Letting the Witness Ramble or Speculate
Loose narratives give opposing counsel free ammo and opens new lines of inquiry. Train your witness to answer precisely—and only the question asked, then stop talking. Silence is golden.Not Monitoring for Fatigue or Stress
Depositions are marathons. Tired witnesses make mistakes. Build in breaks, monitor for signs of burnout, and recalibrate when needed.Suborning Perjury
If you realize your witness is lying—or if your coaching has nudged them into fiction—alarms should be going off because you have an ethical obligation to correct the record. ABA Model Rule of Professional Responsibility 3.3(a)(3) and (b). Discussing truthful ways of handling difficult questions is fine. Shaping false narratives is not.
Sin 3
Objecting Badly, or Worse—Improperly
Objections are your only tool when defending a deposition. Use them well or don’t use them at all. But never weaponize them.
Misusing Objections to Coach
“Objection, form… but you can answer if you understand the question.” That seemingly innocent phrase often leads to coaching in disguise. The witness parrots your objection, claims not to understand, and waits for help. Don’t do it. Courts see through it.Overusing “Form” Objections
Constant, knee-jerk objections to form dilute your credibility. Worse, they may confuse your witness or annoy the court if played back later.Improper Assertion of Privilege
Telling a witness not to answer because “that’s privileged” isn’t a shield unless you can back it up. Refusing to let a witness testify—without articulating a valid basis—can invite sanctions.Calling Improper Breaks
Taking a break in the middle of a damaging line of questioning (without good cause) looks like coaching. Breaks are fine—but time them properly and document their necessity when taken.
Sin 4
Losing the Ethical High Ground
Preparation must be vigorous—but ethical. Crossing the line turns good advocacy into malpractice or worse.
Over-Coaching the Witness
Practice should help a witness clarify—not fabricate—their testimony. Subtle suggestions that reshape memory or slant facts cross the ethical line, even if done with plausible deniability.Failing to Clarify Ethical Boundaries with the Client
Some clients expect you to “make it go away.” You must set ethical expectations. Be clear: you can prepare, not manipulate. And you can’t protect them from their own dishonesty. You may need to withdraw.
Sin 5
Losing Control of the Room
You may not be doing the questioning but make no mistake: you need to stay in control. Letting opposing counsel dominate your witness or bait you into theatrics is a strategic failure.
Trading Insults with Opposing Counsel
Stay cool. Escalating into arguments might feel satisfying in the moment but undermines your credibility, stresses your witness, and may give rise to discipline if the transcript gets ugly.Failing to Rein in “Rambo” Opposing Counsel
If your witness is being badgered, misled, or misquoted and you don’t object or pause, you're leaving them defenseless. Protect the record. Protect the witness.Being Too Passive on the Record
Compound questions? Misstated testimony? Misleading hypotheticals? If you don’t object, it goes on the record as fact. Don’t let the transcript become a weapon against your case.
Sin 6
Tactical Blunders That Echo Into Trial
Depositions are trial tools in disguise. Treat them that way.
Letting Opposing Counsel Reframe the Narrative
Watch for loaded summaries and subtle traps. It often starts with “Now, if I understand your testimony, you said . . .” Don’t let misleading conclusions go unchallenged. Object and clarify up the record while you still can.Inadequate Knowledge of Local Rules
Federal and state rules—and even judge-specific preferences—govern what you can and can’t do in a deposition. Know them. Follow them. Violate them at your peril.
Sin 7
Failing to Prepare for the Future Use of the Deposition
A deposition isn’t just discovery. It’s testimony under oath—testimony that might be used in a motion, at trial, or in settlement. That makes your role in accurately preserving the record absolutely critical.
Failure to Protect Privilege
If your witness reveals protected communications, that’s on you. Worse is failing to recognize the danger as it’s unfolding. Train your witness on how to spot the red flags—and be ready to object when necessary.Not Preserving Key Objections
Some objections—like hearsay, foundation, or lack of personal knowledge—must be timely made during the deposition or they’re waived under Rule 32(d)(3)(B) of the Federal Rules of Civil Procedure. Don’t let a lapse today cost you your exclusion tomorrow.Not Using the Opportunity to Clarify Answers
If a witness contradicts prior preparation or botches a key fact, fix it while you can. Ask your own follow-up questions on the record to clarify or amplify prior testimony.
Bonus Sin: Not Reviewing the Transcript for Content and Errors
You only get one shot to clean up the record—and it’s within 30 days of receiving the transcript. Failing to review it with your witness means you may miss corrections that could neutralize damaging testimony. It’s also a missed chance to evaluate what evidence you need to exclude, reinforce, or clarify through motions or additional discovery.
With tools like esumry, deposition transcript review is fast and strategic. Tag testimony, assess credibility, and get ahead of how the other side will use the record—before they do.
