Shoes polished. Suit pressed. Briefcase monogrammed. It's Day One of being a lawyer. Then the partner pops into your office and says, “Here is a file. Go depose the opposing party.” Say again? Deposing wasn't on the bar exam! Now what? Adopt this mindset: Ignorance is always curable. In that spirit, here is “A Starter's Kit to Deposing” in the form of questions that are commonly asked but seldom answered.

Question No. 1: Who should I have with me at the deposition?

This is an interesting strategic call for the corporate defendant. Federal law allows more than one corporate rep. So say you are defending a whistleblower lawsuit: you can have both the in-house counsel as well as the manager accused of making the decision to fire the plaintiff. Take a copy of In re Terra International, 134 F. 3d 302 (5th Cir. 1998), with you to the deposition. Solid support.

Question No. 2: How do I leverage the presence of the corporate reps (Part 1)?

I call this the “prophylactic effect.” Sometimes a witness tells the truth—not because she fears God will strike her dead if she lies (the origin of the oath)—but because someone is sitting across the table who knows the “truth” or at least a version of the truth that will help your client.

Question to witness: “I will represent to you that Mr. Jones, sitting to my right, will testify that he said XYZ, not ABC. Are you testifying that he is making that up?” Or ask, “What facts do you have that Mr. Jones gave you Exhibit 5, a poor evaluation of your performance, because you are a woman?” Our cognitive operating system dictates that people think in terms of conclusions, not facts. (Bonus advice: Never use this question for the ultimate issue, as in “what facts do you have that you were fired for your race?” unless you want an answer like a speech given by Mussolini on the balcony. Remember: Corporate reps are useful, they are not potted plants.

Question No. 3: How do I leverage the presence of the corporate reps (Part 2)?

Canonize them. Elevate to sainthood. Do this at the start of the deposition (more on the start in a minute) before the witness gets all worked up over the injustice that was done to her. It is easy to be dismissive of someone who is not sitting in front of you. Ask: “When I use the word 'professional,' what does that mean to you?” Once the witness is committed, ask, “And Mr. Jones was professional to you, isn't that correct?” No-lose question. If he says “yes,” then play that out for all it is worth; if he says “no,” then take the answer to the limit and end up asking, ”so he had no redeeming qualities whatsoever?” If the witness says “that's right,” that is good for you as well. In fact, that was the plaintiff's answer in McIntyre v. The Kroger Co., 863 F. Supp. 355 (N.D. Tex. 1994). It was a claim of disability discrimination. In granting summary judgment to the employer, the court observed (after quoting the question-and-answer) that the case was not so much about disability discrimination as it was about a personality conflict.

No. 4: What if the witness is not responsive to my questions?

Chill. Don't start objecting to nonresponsive. The witness is sizing you up and will think she is winning. Moreover, give the witness the benefit of the doubt. Maybe she just wants to get out everything she knows and is not being deliberately difficult. Maybe she is nervous. Juts say, “Ms. Witness, I promise you that I will let you say anything you want in this deposition but it will go faster if you do your best to answer my questions as directly as you can. Is that OK?” But be sure to follow up at the end of the deposition with a question that confirms that you kept your promise.

No. 5: How else do I end the deposition?

I sometimes like to ask the witness/litigant if he knows that, should my client prevail, he or it will be responsible for payment of my client's costs. Few lawyers alert their clients to this potential. I always figured it gave the lawyer and the client something to talk about in the elevator on the way down to the lobby.

But more critically, consider saying this: ”I want to thank you for your courtesy and professionalism in this deposition. I know it is not easy to be deposed.” Only say this if you mean it, hand to heart. While our oath requires zealous representation of our clients, it also mandates zealous representation of our system of justice. A small gesture? Sure. But it is the small things, built up over time, that save us. So, go forth and depose!