Deposition Strategy: Order of Witnesses
Before you take the first deposition in your next case, you need to spend time doing something that most lawyers never do. You need to decide what is the best order to take the depositions. Do you want to develop your case from the ground up, or from the top down? Most attorneys start at the bottom and work up but there is no one right way that applies to all cases. For example, if you are a plaintiff in a medical malpractice case, you may start by taking the depositions of the nurses and then work your way up to the doctors. This would give you the chance to build the theory of your case with lower level fact witnesses before you question the doctor.
But such an approach alerts the doctor to the questions to expect, since his counsel will have briefed him not only on the questions you have asked but the answers that have been given. It also gives the doctor time to prepare for the moment of truth. By contrast, if you start with the doctor, you may not know all the details of the case, but you will be able to lock down the doctor’s testimony before he has time to learn from others’ testimony and modify his responses.
There is a definite advantage in taking the deposition of a main witness before that witness has had time to prepare by reviewing documents or learning from other depositions. You can catch the witness off guard because opposing counsel will be hearing the specific areas of your questions for the first time and won’t be able to warn the witness ahead of time.
In contrast, working from the ground up is particularly helpful when you don’t know who the decision-maker is who took the action which hurt your client. You may need to build your case by getting details from witnesses low in the food chain so you will know what questions to ask the decision-maker when you determine who that is.
The key is to be creative and not approach every case the same. While in most cases, you probably will start with low-level witnesses, don’t be afraid to go after the key witness first when you know what questions to ask him.