A deposition is a discovery tool used by attorneys to compel witnesses and opposing parties to answer questions under oath. Generally, they should be used for three purposes: to gather information, to gain admissions and to test out theories of the case. As a former prosecutor and a business litigator, I have had the opportunity to witness attorneys who were very skilled at taking depositions, but most were not. When an attorney takes a great deposition, the case and facts become more clear and, as a result, a favorable and faster outcome is likely to occur. In the best circumstances, the deposition of a party opponent or a key witness is often where the opposing party sees their case fall apart. This occurs if an attorney’s deposition reveals useful information, gains admissions and successfully undermines (or bolsters) a witness’ credibility as well as the attorney’s theory of the case.
I recently had a business contracts case where we represented a business seeking recourse for the breach of a business contract. The defendant’s main defense was that it was a third party who signed the contract, not the defendant. Throughout the course of the deposition, I gained a number of admissions from the defendant which (a) undermined the factual credibility of her defenses; and, (b) gained testimony which supported one of our alternate theories of the case – that the third party had her authority to execute the document on her behalf and that it was reasonable for my client to rely upon this apparent authority; and, (c) gained information about the existence of other documents which supported my client’s positions. The case settled at the deposition table for full damages plus my client’s attorney’s fees, due to the fact that the opposing party realized in the deposition that we were very likely to win at trial.
The groundwork for making a deposition successful is laid long before the day of the deposition. Here are some deposition preparation practices which have helped me have success on the day of the deposition: