Depositions should never be treated as simply “the next step” in litigation. Instead, there should be a plan as to whether depositions will be used to explore unknown facts or at trial. Too often, lawyers default into a fact-finding mission at a deposition and neglect to solidify the deponent’s sworn testimony in a way that can be used during a cross-examination at trial.
This article focuses on key issues attorneys should consider when taking depositions for effective use at trial.
Video-Record Depositions.
Consider whether the witness will be available at trial. Witnesses retire and move outside of the jurisdiction. Witnesses unfortunately pass away. Third-party witnesses can present great difficulties at trial time. Unless you have extreme budget limitations, you should video record depositions. Video-recorded deposition testimony is much more impactful than reading a transcript into the record. In Texas, deposition testimony can be freely used at trial. Therefore, regardless of availability, having a video record of the testimony can helpfully demonstrate witness credibility (or lack thereof) to the decision-maker. Further, if you are doing simulation research, you can test the witness with a mock factfinder. That is impossible on a cold written record.
Keep Trial Themes in Mind.
Use the same language or defined terms in your questions that you will use at trial. If your theme is “a deal is a deal,” use the word “deal” in your questions, not “contract.” If you have a complicated name for a document or transition, pick a shorthand description and use that. It will be confusing later to the decider if you switch to a different term.
Don’t Waste the First Hour.
The first hour of a deposition is critical. While there are a handful of “preliminaries” that should be covered, don’t waste the hour on what the witness did to prepare. Instead, get to key issues that you need to stake out the witness’s position on early, so you are able to pivot later in the deposition or consult with your client to understand any new twist in the case. Alternatively, get agreements from the witness on what should be the easy things. If the witness disagrees, you know you have a hard day ahead, so you dig in. If the witness agrees, you might save key documents for trial.
Catch the Witness in Lies Early.
Traditional deposition strategy is to start using documents in the afternoon after the witness’s position has been established in the morning. But doing this allows the witness to stretch for a large part of the deposition. Better to show the witness that you have a document that contradicts their testimony and push for forthrightness earlier on. The witness will likely say that they forgot and the document has refreshed their recollection, but that is OK. Your point has been made.
Get the Yes or No.
Traditionally, lawyers defending depositions train their witnesses to provide short yes-or-no answers. While that sometimes is good advice, it can be dangerous because those answers are exactly what are needed for an effective cross-examination. While taking the deposition, strive to get that unqualified soundbite in every important part of the case. With an obstinate witness, this may require asking the question multiple times. Hang in there and do that. The goal is to lock the witness into a position, and asking discovery-style questions provides the witness with an opportunity to explain away an otherwise powerful admission.
Consider Asking “Always” or “Never” Questions.
Very few things in life are always or never true. Witness testimony that something always happens or has never happened is a great foundation for a cross. Even if a witness won’t go out on the proverbial limb to say “always” or “never,” they are forced to explain exceptions, which can also be used for cross.
Use “Real Time” Court Reporting.
The most effective questioning can be using the witness’s own words, but it is hard to do that on the fly. If you are looking at their words that have been transcribed, you can incorporate them into the next question. It is much easier to get agreements if you use the terms that the witness is comfortable with; this reporting tool allows you to do so.
Keep a Tidy Record.
Remember that if you use a deposition at trial, the opposing party will have the right to invoke the “rule of optional completeness” to provide the factfinder with additional deposition testimony. Ideally, admissions should not be woven into a series of long answers that tell the other side’s version of the facts. Therefore, once you understand the witness’s position on the facts, put together a series of straightforward yes-or-no questions that summarize the witness’s testimony. It will be much more effective to rely on the concise portion of the record at trial.
Decide if You Are Going to “Go There.”
Once you use a line of questions in a deposition, you are giving the other side a window into your trial strategy and themes. Other deponents can be prepped and counter-themes can be developed. It is not always necessary to cover each part of the case with each witness. Be thoughtful before trudging through every subject in dispute in early depositions.
Don’t Forget to Authenticate Documents.
In Texas, you can do so through testimony of a witness with knowledge that an item is what it is claimed to be. Consider marking an exhibit at a deposition solely to authenticate it if you may use as trial, particularly if witness availability is a concern.
You cannot win or lose a deposition, but deposition testimony should build the backbone of your trial presentation. Considering these key issues will help you achieve that goal.
Angela Zambrano is co-leader of Sidley’s Dallas office, co-leader of the firmwide commercial litigation and disputes group, and leader of the Dallas litigation group. Chandler M. Rognes is a managing associate in Sidley’s commercial litigation and disputes practice in Dallas.