Deposition as a Hallway: Doors to Open, Doors to Shut

• Pages: 29-30
• Date: 01 January 2023
• Author: Hon. Mark A. Drummond (Ret.)
• Subject Matter: Civil Law

By Hon. Mark A. Drummond (Ret.), Litigation News Associate Editor

am a visual learner. Most people are. We prefer to get

our information through our eyes rather than our ears.

We also remember more of what we see than what we

hear. I use a visual to organize and remember what I

need to cover in a deposition. My deposition visual is

a hallway.

In past columns, I wrote about using a memory palace.

You create visuals that you place in a building you know

well, such as your home, and you simply walk through your

house. You are cued to the next question by seeing in your

home objects, persons, or actions related to the case. The

wilder you make it, the more you will remember. This mem-

ory tool helps me spend 90 percent or more of my time listen-

ing to and watching the witness rather than reading a written

deposition outline. Let’s begin.

Doors to Shut

You are looking down a long hallway with many doors. You

notice that some are open, some are shut. You also note the

unusual wallpaper. You shut all the doors the witness will try

to use to escape. Each door is labeled. Examples would be “I

Deposition as a Hallway: Doors to

Open, Doors to Shut

was tired,” “I didn’t understand the question,” “I didn’t know

I could add to or correct an answer.”

You slam those doors shut at the beginning of the depo-

sition. Very early on, I could tell whether counsel taking the

deposition had ever been to trial. The “tell,” so to speak, was

how thoroughly they covered the standard admonitions. If

they rushed through them, did not separate them, did not

notice that the witness was just nodding instead of answering,

I knew they had never experienced being at trial and having a

witness escape through a door labeled “excuse.”

For those of you who are thinking, accurately I might

add, “So few cases go to trial,” you still need to shut those

doors. Your summary judgment motions will benet. Judges

cite deposition admonitions when they detect parties trying to

create a “sham fact issue” in counter-afdavits. For example,

“At the deposition, Josh acknowledged that he knew if he did

not understand a question that was put to him, he should say

so. (Depo., at 6–7.)”

In another, the court stated, “There is no indication of

genuine confusion in his answers during the deposition…

Therefore, the afdavit will be disregarded as an impermis-

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Published in Litigation News Volume 48, Number 2, Winter 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or

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