My Perspective on Using Depositions Strategically
In my 17 years of trying cases, I’ve come to view depositions as a critical, yet often overused, tool in civil litigation. While they are an essential part of the discovery process for obtaining sworn testimony, I find their true value at trial is frequently misunderstood.
- Limited Impact at Trial: In my experience before judges, juries, and arbitration panels, deposition testimony rarely delivers the “gotcha” moment lawyers hope for. More often, reading from a transcript is tedious and fails to persuade the trier of fact. The threat of impeachment can be powerful, but the act of using deposition testimony in court is often ineffective and can lose the audience.
- A More Strategic Approach: Because of this, I believe in a more targeted use of depositions. Rather than conducting exhaustive, all-encompassing examinations, I focus them on specific, practical goals. This includes identifying and locating key documents, understanding an opposing company’s internal processes, and, most importantly, locking in the other side’s definitive version of the facts.
- Purpose-Driven Discovery: Ultimately, every deposition should have a clear, strategic purpose that justifies the significant time and expense involved. I work with my clients to ensure each deposition is a deliberate step toward building a stronger case, facilitating a favorable resolution, or crafting a more compelling and concise narrative for trial.
Learn more about Sean M. Sweeney here.
You can learn more about our Business Litigation practice as well as some of the specific kinds of case we work on, including High-Stakes Commercial Litigation, Strategic Products Liability Defense, Trade-Secret Litigation and Corporate Shareholder or LLC Member Disputes.
TRANSCRIPT:
“Depositions, what are they? What’s their usefulness? If you’ve been involved in a civil litigation case, for us typically that involves businesses suing each other, or people suing a business, but more often it’s a business-to-business kind of dispute. A deposition is part of the discovery process. So part of any lawsuit you get to discover what the other side contends, what evidence they have, what they say.
It’s a bit like playing cards where you get to ask to see their cards, at least assuming you ask the right questions. And so a deposition is part of that process. And it’s sworn testimony. You get to bring in witnesses. It could be a party, could be a non-party, could be a corporate representative of a party. But any human being who has knowledge or information about the dispute could be asked to come in and offer sworn testimony under oath to discover what it is they have to say.
Now, this testimony is not really evidence. It’s not what’s going to be presented to the jury in most cases. Sometimes if there’s an unavailable witness or whatever, a deposition transcript will come in. Instead, it’s more for discovery purposes and what lawyers refer to as impeachment purposes, sort of using it against you later if you tell a different story at trial than you told in the deposition. Where I struggle with depositions is not to say that they’re useless, but I think they’re slightly overused or they’re used without a purpose.
So in my experience, I’ve been trying cases in front of judges, what we call bench trials, in front of juries, in front of arbitrators for the last 17 years, and I’ve done more than I can recall at this point. And what I have found to be universally true is that nobody is interested in what happened at that deposition. I’ve yet to see anybody present deposition testimony as compelling in front of a judge or jury or panel of arbitrators. I’ve yet to find deposition testimony to really carry the day one way or the other in a trial.
Instead, it gets used one of two ways. It either gets ignored almost completely, which I think is more common at trial, or it gets used very ineffectively. It gets used in a very boring fashion, or a lawyer’s reading a bunch of transcripts to the witness on the stand trying to get them to offer testimony or to confirm their testimony they offered in the deposition. And I think it’s difficult for the trier of fact, whether that’s a judge or jury or panel of arbitrators, to follow or to really understand what’s going on or really get much out of it. And so that’s really colored my perception that while I use depositions, and you know, they’re a necessary tool, I try to be a little bit more strategic in the manner in which we use them.
Because if they’re not going to be useful at trial, if they’re not going to be compelling at trial, and at the end of the day a trial is a show, it’s a performance. You’re putting on your case in three or four days, maybe five days on a long trial before you rest. And that means there’s a ton of information that you have to distill down and explain to the trier of fact in a very concise way. And depositions or reading deposition transcripts, in my opinion, does not lend itself to this.
So instead, I try to focus depositions on a few key things. One is figuring out where documents are or what documents exist. Depositions will be very useful for this. It’s very hard to guess exactly how a company might store its records or what manner it uses to document these things.
So getting somebody in with knowledge and just getting an understanding of how things work at that particular company, so we know how to ask the right questions, that could be really useful. So I think those depositions are really useful, and there’s some element of finding out what their version of events is, right? Let’s find out what are you saying happened, how are you saying this went down, what are you saying is the deal?
But I’m utilizing that not as a chance to argue with them or to ask a bunch of loaded questions that I think I can use as a “gotcha” because I just don’t find it’s that effective. Instead, I just want to hear your version because now I have you on record as to what it is, and I know that you’re going to be less likely to contravene that version because I can use it against you at the trial to impeach your testimony.
Now I personally don’t find that that kind of impeachment is actually that effective. It’s sort of one of those things that the threat of impeachment is probably more useful than the impeachment itself, because again, it’s hard to follow. It’s difficult to understand. It’s rare that the nuance of your question that you asked in a deposition is exactly the same as the nuance of the topic that’s being discussed at trial. And so I think juries and judges sometimes find it a little tedious when lawyers spend a lot of time going back over the deposition.
And so there’s nothing wrong with depositions, but if you are a litigant or business who regularly litigates, or you have the misfortune of having your one and only case that you’re litigating, one thing you should be talking to your lawyer about is what is the plan with each deposition? What are we trying to get out of it?
Why are we taking it? Why are we spending the money on it? They can be an expensive part of the discovery process. And how do we make sure that it’s actually moving us forward towards resolution, and/or setting us up better for a better story to be told at trial, because that’s what I think it’s all about. So depositions are useful, but they’re not everything, and I do find that they have a tendency to be a little bit overused.”
