Day on Torts
Great Trial Lawyers Understand the Importance of Depositions
Great trial lawyers understand the value of depositions, and whether the deposition is taken personally or the task is delegated to another, go into a deposition with clearly defined goals determined after adequate preparation. The diminishing number of trials means that many cases are won and lost in depositions. Indeed, virtually every deposition affects the value of every case.
Yet, a great trial lawyer need not take all of the depositions in any case or any of the depositions in a given case. This is a task that can be delegated to another comptent lawyer.
Great trial lawyers first think about whether a person or entity should be deposed. What is to be achieved by the deposition? Is there a tactical advantage to not taking the deposition? What other discovery should be done before the deposition? Should the deposition be videoed?
The great trial lawyer prepares for a deposition. He or she marshals the known facts before the deposition, and then determines what facts need to be confirmed or developed from each deponent. Those decisions are made after examining the case thoroughly, anticipating potential factual issues and legal theories that will be advanced by the opponent. Questions are asked with a clear goal in mind, using words chosen with the ultimate fact-finder in mind. One attempts to close and seal possible defenses or claims, including those that have not been publically raised.
A great trial lawyer may choose to impeach a deponent at the deposition, save the impeaching material for trial or use it as leverage for settlement. This is a judgment call.
Great trial lawyers treat deponents will respect, whether they be janitors or CEOs. They do not demean or belittle the less-educated or less- intelligent deponent. That being said, great trial lawyers expect that appropriate questions will be answered and will insist that a witness not evade his or her obligation to provided truthful testimony.
Great trial lawyers understand that creating a record at deposition is vitally important, and make the effort to leave the deposition with a transcript/video that accurately reflects the events of the deposition. This attention to detail includes the appropriate introduction of exhibits and the use of them during the deposition.
Finally, great trial lawyers understand that Rule 32 of the TRCP and Rule 804 of the TRE gives rise to a myriad of circumstances in which a so-called discovery deposition can be used at trial and plans accordingly. Indeed, the knowledge of that rule is a factor taken into consideration in determining whether to take the deposition in the first place.
The "What It Takes To Be A Great Trial Lawyer" Series