Time Machine Techniques for Better Depositions

Summary

• The most valuable tools you can bring to a deposition are your imagination, your time machine, and a calendar.
• Imagination ranks as your single greatest asset in any deposition. Step into your time machine and visualize what happened.

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I began teaching for the National Institute for Trial Advocacy (NITA) in 1986. Over the next four decades, I taught thousands of attorneys in hundreds of courses. That experience led me to a simple conclusion: The most valuable tools you can bring to a deposition are your imagination, your time machine, and a calendar.

Too often, young attorneys arrive at depositions with every question written out—sometimes down to the punctuation! Or, these days, they might arrive with a list of questions generated by AI (I’m sure that someday AI will be taking depositions, but we’re not there yet— thank God). The young attorney clings to their script, rarely straying from the track they laid in advance. That rigidity defeats careful listening and missed signals from the witness, with far too few follow‑up questions as a result.

Instead of focusing on the answer and the witness, the attorney focuses on the next question or perhaps writes out the answer verbatim. No need to do the latter. You have a court reporter. Ask for a read back if the answer is long.

Many believe multitasking is useful skill. For complex work it is not. Multitasking is rapidly switching between tasks—asking a question, writing the answer, while reading the next one—and doing none of it well. The techniques that follow will help you get your nose out of your notes.

We often talk about “building a case.” I like that image. In an earlier article, I compared a deposition to a hallway lined with doors—some you open and explore, others you want to close. This article extends that metaphor. While the plaintiff builds, the defendant works just as hard to tear the structure down.

Since construction is my theme, let’s turn to the nuts and bolts. Whether you work from a laptop or, as I prefer, a three‑ring binder, keep the pleadings, anticipated jury instructions, exhibits, your timeline, and an actual calendar close at hand. These materials form the framework of the deposition. Your questions—and the answers they produce—complete or dismantle the structure.

Your Timeline

As a case develops, you create a timeline. At some point, the plaintiff and defendant crossed paths. That moment serves as an anchor date, but events leading up to it often matter just as much. Another anchor date arrives with the filing of the lawsuit. How much time passed between the initial interaction and the filing? What occurred in between? Holding this structure in mind helps you generate questions both in advance and on the fly, based on the answers you hear.

Your Calendar—Make It Visual

Next, place your timeline on an actual calendar. Events never occur in a vacuum. They happen on specific dates, at specific times, and visualizing them brings the case to life. A deponent testifies that he made the call from his office at 7:30 p.m. on a certain day. You glance at your calendar and notice the date fell on a Friday before a three‑day weekend—or perhaps on a Sunday. That should trigger more questions. Make sure your calendar includes floating holidays such as Memorial Day, Labor Day, Columbus Day, and Thanksgiving, all of which land on different dates each year.

Choose a calendar that provides broader context about what happened in the world at the time. Everyone remembers the dates September 11, January 6, or October 7. But what happened on February 1, 2003? That morning, the space shuttle Columbia disintegrated upon reentry, and many people spent the day glued to the news. Several websites allow you to research past weather, traffic, and major events in most cities within seconds. You can do it on the fly or at a break.

The calendar proves especially powerful when it exposes gaps in time. When the deponent learned of an event, how long did they take to respond—hours, days, weeks, or months? What else did they do during that gap? Why did those actions take priority? What prevented an earlier response? Could someone else have acted instead? Consider marking a blank calendar as an exhibit and asking the witness to fill in everything they did during the gap. That exercise can yield a compelling trial exhibit.

Visualization and Your Time Machine

Imagination ranks as your single greatest asset in any deposition. Step into your time machine and visualize what happened. There is a common perception that people are either left-brain (analytical) or right-brain (creative and visual) thinkers. Many articles dump attorneys into the left-brain bucket.

This is an oversimplification. I believe all people are a mixture and all people are good at visualizing some things, but not others. I can visualize my next meal very easily. My wife can visualize the clothing error I am about to make before I make it. I’m urging you to tap into any ability you have to visualize what is happening, regardless of a test you might have taken 10 years ago that said you were a left-brain thinker.

Let me be clear: I use notes and an outline. My outline lists topic areas, with space beneath each for brief reminders and follow‑up points. I also bring the produced documents. With that framework in place, I can move methodically through events as they unfolded. Take an important document, such as an email. Visualize the first moment the deponent saw it. Did they read it on a phone or at a desk? Did they sit in a closed office or an open workspace? Who else stood nearby? What did they do after reading it? What did they fail to do—and why?

Now picture a meeting. Borrowing a phrase from the Broadway phenomenon Hamilton, think about “the room where it happened.” Build that visualization into your questions: “As you’re sitting in the meeting for contract approval, tell me what’s happening.” Ask the deponent to visualize the moment with you. You may uncover additional details—or, if they claim not to remember, you may successfully narrow their trial testimony.

Visualization uncovers facts, but it must go further. Attorneys tend to focus on what happened. Jurors want to know why people made the choice they made. What would you have done? Visualize what a reasonable person would have done. Ask whether the witness did that. If not, ask why. When the deponent claims specialized expertise, ask what someone in that field would have done—or not done given similar circumstances.

By visualizing events, you lift your eyes from your notes, listen more carefully, and ask better follow‑up questions.

Resource

Hon. Mark A. Drummond (Ret.), “ Deposition as a Hallway: Doors to Open, Doors to Shut,” Litigation News, Vol. 48, No. 2 (Winter 2023).

Endnotes

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Author

Civil Jury Project At NYU School of Law

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