by Nicholas A. Loyal
In acting, going off-book is a critical step of any performance. It’s the time when the focus shifts from just saying the words that are on the page to actually understanding the intent behind those words and expressing them with emotion. Because the art of acting and the legal profession borrow from one another more than any of us would like to admit, it should come as no surprise that this principle of “off-book” performance is just as applicable to lawyers as it is to actors, particularly in one common area of practice: the deposition.
When I started taking depositions, I would type up an outline that had every topic and avenue of questioning that I wanted to go down laid out. I knew precisely how I would gain the admissions and testimony that I needed, and I had plans laid out to develop points that would be used for cross-examination either later in the deposition or at trial. During one deposition, I even had a question tree set up, so that I knew what questions to ask depending on certain responses. I would ask my questions, write down the responses, and go down the script. This was very thorough, but it also took probably three hours longer than it needed to. Thankfully, I’m not the only person who did this, as I’ve seen other lawyers go through medical histories at depositions line by line with surgical precision and with each question and answer leading to a mark from a felt-tip pen over the course of several hours.
The problem with this approach, I soon found out, was that if you’re chained to a script, there’s not very much room for movement. The second a witness doesn’t say the thing you want him to say, or their attorney starts to object (legitimately or not), you can be thrown off track and never regain your footing—leading to a spiraling confusion of questioning that may not even be any good at trial. Witnesses sometimes talk about things on page fourteen of your outline when you’re still on page five, and you could miss great testimony if you charge ahead along your appointed path rather than follow the testimony that’s being given. I imagine there’s nothing that experienced lawyers like doing to new attorneys in depositions more than offering a pointless objection solely for the purpose of throwing a green associate off track and into deep water, just to see what the (potentially hilarious) results might be.
For this reason, it’s important that depositions, as much as possible, be “off book.” The simplest way to do this, in a method learned from law school, would be distill that 25 page outline of detailed questioning onto something that you can fit on a single page: a list of topics of conversation, rather than a script. Creating such a “cheat sheet” will not only enable greater flexibility at the deposition, it will also allow for better preparation—as the creation of such a distilled document necessarily requires you to learn the relevant material, determine the appropriate lines of questioning, and figure out where that questioning fits in the overall line of inquiry for the deposition. Having just a single aid, rather than a lengthy script, will also allow you to observe the deponent and gauge their emotional reaction to questioning, be better prepared to ask follow-up questions, and to move between topics if questioning is sidetracked or objected to. It could even lead to the point where not even a cheat sheet or page of notes is needed, and the whole deposition is “off-book.”
This doesn’t mean, though, that there is never a time and a place to have pre-written lines of questioning. Depositions, fundamentally, are not fact finding missions but are instead preliminary opportunities to cross-examine witnesses. If you’re using a deposition to set up a dispositive motion on some topic, and there is specific language that a witness must testify about, there’s nothing wrong with writing it out to make sure it gets on the record. Any deposition, though, will be better served if the script is used as a life jacket rather than a crutch: something that’s there if you need it, but not something you lean on or are tied to.
Lawyers in the courtroom are not that different, fundamentally, from actors on stage, and if actors can go off-book during rehearsal, it only makes sense that lawyers should do the same during depositions.