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Depositions Part 4: An Excerpt From The Effective Deposition: Techniques and Strategies that Work, Fourth Edition

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effectivedepo_enhancedTaken from The Effective Deposition: Techniques and Strategies that Work, Fourth Edition by David M. Malone and Peter T. Hoffman. © 2012 by the National Institute for Trial Advocacy.


Chapter Two

Each side in a typical case has a number of discovery devices available: interrogatories, document subpoenas, requests for admission, requests for production, orders for physical and mental examination, informal (nonjudicial) investigations, and, of course, depositions. Depositions are the most effective of these for learning what a witness or party has to say about the facts of the case and the theories and approaches an opponent is entertaining. The opportunities provided by depositions—to follow up, to probe, and to challenge—and their ability to be used with any witness, not just parties, account for their effectiveness and popularity.1

Depositions can be taken for many, often overlapping, purposes. Broadly speaking, the three primary reasons to take depositions are:
1. to gather information;
2. to perpetuate testimony; and
3. to facilitate settlement.

While these purposes are not mutually exclusive, knowing the reasons or objectives for taking the deposition allows you to organize and phrase your questions in a way that maximizes your effectiveness.

2.1 Gathering Information

The most common reason for taking a deposition is to gather information. Depositions allow you to inquire into what is going on in the case, what are the facts, how the events occurred, what the other side knows, what information supports your version of events, what the weaknesses are in your own case, where the flaws exist in the opponent’s case, what other witnesses might have useful information, and so on. In addition to gathering facts, the deposition provides information about the demeanor and likely effectiveness of witnesses at trial or some other case-dispositive proceeding. In short, the deposition is being taken for the purpose of discovery. Several different reasons exist for gathering information in a case, as is discussed below.

2.1.1 Finding Out What You Don’t Know

One of the most important reasons for taking a deposition is to learn new information about the case. Typically, what your client and any friendly witnesses have to say about what happened will be known through informal fact gathering, but there will still be many blank spots in the facts of the case. Like a nineteenth century explorer deciding on a route by looking at a map of Africa and seeing the many vacant areas on the map, the deposing counsel seeks to fill in the gaps in the facts left by clients and friendly witnesses. Often the only ones who can fill in those blank spots are witnesses who won’t cooperate or the opposing party who, of course, cannot be interviewed without permission of that party’s attorney. Where was the plaintiff going before the collision with your party’s car? What happened at the meeting where your client claims the defendants fixed prices? And so on. With the African explorer, the only way of filling in the blank areas is to go and look. With litigation, the most effective method of filling in those blanks (together with discovery of documents) is taking the depositions of witnesses to find out what they have to say about the facts of the case.

2.1.2 Confirming What You Think You Know

A second purpose for taking depositions is to try to confirm what is believed to be already known. Often, based on documents and information from clients and friendly witnesses, the attorney believes she know the facts of the case. The version of the facts from clients, friendly witnesses, and their documents is not necessarily replicated by opposing parties, their friendly witnesses, and their documents. If the opposing parties and witnesses agree with your witnesses, then you have greater confidence that this will be an undisputed area at trial. Perhaps you can even reach a stipulation with the other side about these points. On the other hand, if the witnesses disagree, you will know this before trial when there is still an opportunity to marshal the proof in favor of your version of events or to adjust case theories and themes to the new or different view of the facts. The worst possible scenario is to discover for the first time at trial, when little can be done to meet the situation, that what was thought to be undisputed is actually hotly contested. Effective depositions avoid this problem.


This books is available in print and E-book formats.

Get a printed copy of The Effective Deposition here.

Get the E-book for iTunes here.

Get your Kindle Edition from Amazon here.

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