Tags: Depositions

The key to effectively preparing for any deposition is to identify what you seek to accomplish with it.  These goals vary depending on the role or knowledge of the witness, time or financial constraints, or other factors.  Once you identify the purpose of the deposition, you are in a better position to effectively craft your questions and identify your key exhibits.  As part of your deposition preparation, it is important to think through each of these six purposes of the deposition, and to evaluate which apply.

  1. Evaluate the Witness.

The deposition is likely your first – and one of your only – opportunity to ask the witness hard questions about the case.  Through that examination, you can evaluate how the witness will withstand questioning at trial.  How much does the witness remember?  Is the witness genuine in her claims that she either does or does not remember certain facts?  Is the witness evasive, or does she answer questions directly?  Is the witness easily frustrated or upset, and how does she express frustration?  Does the witness have a mannerism or gesture that she displays when she is hiding something or being untruthful?  And perhaps most importantly, is the witness likeable?  In the end, you can get a sense whether the witness is compelling and whether a jury will ultimately find his or her testimony to be credible.

  1. Gather Information.

This is the most obvious purpose of the deposition.  Of course, all depositions are, at least in part, aimed at gathering information about the case.  This effort ranges from learning the witness’s “side of the story,” to learning what documents might exist to corroborate or contradict that version of the story, and to identifying what other individuals hold key information and should also be deposed.  While it is not uncommon for documents to be identified during the course of the deposition and for counsel to ask that they be produced following the deposition, it is wise to keep a separate list throughout the deposition of key documents that you have identified and to immediately follow-up with counsel following the deposition about their production.  In that same vein, it may also be wise to de-brief your thoughts and strategy following the deposition to evaluate whether you have identified any other individuals to be deposed.  The transcript is of course a powerful tool, but it will not reveal your mental impressions formed near the time of the deposition.

  1. Gain Admissions.

All of us likely go into a deposition imagining that we will be able to elicit key admissions from the witness.  Sometimes that happens, sometimes it doesn’t.  In my experience, using the exhibits to craft a chronological narrative is an incredibly useful way of identifying opportunities to gain admissions.  In many cases, our actions are a reaction.  Thus, if, in developing your narrative, you wonder why a witness or party acted as they did, or if their action is not explained as a natural reaction or follow-up to some other part of the narrative, that is a clue that you need more information.  In other words, if it doesn’t make sense, you need to dig deeper.  These holes in the narrative provide an opportunity to confront the witness with facts and ask him a pointed question about his motives.  Hopefully, through that exercise, an admission is born!

  1. Solidify Trial Testimony.

A deposition is also a tool to “lock-in” a witness’s testimony in three different situations.  First, it is not always possible to procure a witness’s testimony at trial.  In that case, if a witness has information that you feel may be helpful to your case, or if the witness is one that you anticipate that you will want to testify at trial, then you will want to conduct a deposition of that witness to be used at trial.  Similarly, it may be necessary to compel the witness’s testimony for motion practice.  While a witness may have shared relevant and helpful information with you on the telephone, he might refuse to provide an affidavit, or you may have concerns whether his story might change.  As a matter of strategy, it often makes sense not to depose your own witness, but there are of course exceptions to that rule.  Third, one also must not forget the power of impeachment.  In crafting your deposition outline, it is also important to identify the points that you might wish to address with the witness during cross-examination at trial.  If you gain admissions of those points during the deposition, when you address them at trial, the witness will not be able to answer differently – lest he will be impeached.

  1. Identify Themes and Theories.

Discovery really does work.  In many cases, you will approach a deposition with a particular theme or theory of your case, or you may even believe that you know what the opposing party’s theme or theory of their case will be, only to find that, when you break for lunch, everything has changed.  Either the witness has provided information you didn’t expect, or they have argued their case in a way that you didn’t expect.  At any rate, either you have now come to view the case in a new light, or you have a better understanding how the opposing party intends to pursue or defend the case – or both.  That is powerful information.

  1. Authenticate Documents.

The final purpose of the deposition is to authenticate key documents or exhibits.  In many cases, documents will be produced that have no clear author – pictures, recordings, or handwritten or typed notes are classic examples.  You do not want to guess at who may have authored those documents or who has knowledge of those documents, only to present those documents to a witness at trial and learn that they know nothing about them.  In that sense, a witness can authenticate those key exhibits during their deposition – or they can help you identify the witness who can identify them.   Through the depositions, the appropriate witness is “locked-in” to their deposition testimony, and you should have little trouble authenticating and establishing foundation for the documents at trial.  Of course, if they later contradict their deposition testimony and feign ignorance about the document at trial, you have ample fodder for impeachment.

Depositions are a key tool is a litigator’s tool box.  Through effective depositions, we of course learn new facts about our case, but our ultimate goal is to learn the strengths and weaknesses of our case so that we can better evaluate it and advise our clients.  With these purposes in mind, you can better seize your limited opportunity to speak with parties and witnesses about their case. For questions, call one of our attorneys at our Sioux Falls, Sioux City, or Omaha office today.


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