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Depositions for the Wrong Reasons
The decision to depose a witness is sometimes used as a lazy alternative to critically thinking about trial strategy. Here’s a familiar example: say that after concluding written discovery, you are faced with a number of witnesses who might testify at trial. The knee-jerk reaction, especially for lawyers with unlimited budgets, is to depose them all.
A deposition, however, should be a last resort.
First, you need to think about what the witness is likely to say, then ask how this testimony will impact your trial strategy. Viewed this way, some witnesses should not be deposed at all.
A whole category of witnesses, for example, might be friendly to your side and available to testify at trial. A deposition of these witnesses would only benefit your opponent, who would get a helpful preview of the witnesses’ testimony.
At the other extreme are witnesses with damaging testimony who might be unavailable for trial. A deposition risks preserving testimony that would otherwise go unheeded. You might decide not to depose these witnesses either.
Decisions about whom to depose have important consequences beyond trial strategy. You cannot get back the time you spent on an unnecessary deposition. Just as troubling, depositions are very expensive. Deposition costs include outlays for the court reporter, transcripts, room rental, travel, and more.
Clients also expect their lawyers to keep litigation costs under control. For a lawyer wishing to control costs, cutting out unnecessary depositions is an effective way of accomplishing this goal.
5 Questions to Ask Yourself Before Taking a Deposition
In assessing whether a deposition is necessary, ask these questions about each witness.
1. How Important is the Witness to the Case?
To make intelligent decisions about witnesses, you need to know the entire file — claims, defenses, written discovery, and case documents. You also need to think about how the evidence is likely to be presented at trial. Only then can you asses the witness’s importance. If the witness does not have anything to say that will help or hurt your case, you don’t need to depose the witness at all.
2. Is the Witness Available for an Interview?
Friendly witnesses who are under your control usually aren’t good candidates for depositions. To learn what the witness has to say, use the techniques of “informal discovery” and call the witness on the phone or set up a face-to-face meeting. Assuming the witness is available for trial, this might dispense with the need for a deposition. It would be foolish to give your opposing counsel a free preview of testimony.
3. Can You Use Other Types of Informal Discovery?
Informal discovery isn’t limited to friendly witnesses. Assuming there are no ethical barriers (see below), you can interview witnesses before deciding whether to take their depositions. If you decide you want to memorialize a witness’s story, consider a witness statement as an alternative to a deposition. (Keep in mind, however, that witness statements might be discoverable.)
4. Will the Benefits of the Deposition Outweigh Its Cost?
Even when you cannot interview a witness, you might still learn the substance of the witness’s testimony through traditional discovery methods — interrogatories, document requests, or depositions of other witnesses.
Even when the testimony is material, you can still say no to a deposition. At the firm where I started, one of my bosses rarely took depositions. With a background in the criminal courts, where depositions are rare, he was confident he could cross-examine most witnesses at trial without a deposition.
5. Are There Risks to Preserving the Witness’s Testimony?
If a witness has damaging testimony and isn’t going to be available for trial, a deposition might hurt your case. While you often can’t predict all the variables ahead of time, consider the risks before rushing into a deposition. Otherwise, you might be preserving harmful testimony that otherwise would not be available for your opponent to use at trial.
Limitations of Informal Discovery
Sometimes, there is no good alternative to a deposition. A helpful witness, otherwise a candidate for informal discovery, might not be available for trial. Whole categories of witnesses might be off-limits to informal discovery — corporate employees, for example. Some lawyers decide to depose every adverse expert. (Notably, othersdon’t.)
Despite these limitations, always consider alternatives to depositions. If you can reduce litigation costs while improving your case, why not try it? Not only will it make you a smart litigator, but your client will thank you for it.
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