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Deposition Techniques

By William S. Bailey

INTRODUCTION

Used to full advantage, depositions are the single most effective form of discovery under the civil rules. This is true for a multitude of reasons:

•Face-to-face contact with key witnesses, evaluating their credibility and persuasiveness as well as the content of their testimony.

•A chance to test out documents and exhibits on witnesses to see how much good they will do.

•Learn how far you can push witnesses on important issues, honing cross-examination strategy for trial.

•Possibility of unguarded or spontaneous admissions that would never happen in written discovery.

•Find leads on other sources of information.

•If depositions are taken early, a greater opportunity to expose weaknesses and inconsistencies, in that the opposition often hasn't refined its case strategy as much as later on.

Depositions are also a form of enforced discipline on preparing for trial, as taking them requires you to think critically about your case. All the written discovery and documents must be reviewed prior to the depositions, with an attempt to formulate legal theories and themes that best advance your client's position. Effective depositions also require a lawyer to think about and generate exhibits that will help in gaining leverage over a witness.

THE PURPOSES OF A DEPOSITION

In their book, The Effective Deposition , Malone & Hoffman set forth the following purposes of taking a deposition:

•Gathering information

•What are the facts?

•How did the events occur?

•To confirm what you know.

•Confirm what the other side knows.