Using Your Depositions to Win

Why take depositions? You take them to advance your case. You take them, because they will support a motion for summary judgment or because they will strengthen your position at mediation or because they will help you prevail at trial. You take them because they help you win. Before you take your next deposition, think through how it helps you win the case.

Take a deposition to lay the foundation for a summary judgment motion. Summary judgments are won or lost on the facts. Look at the relevant jury instructions, statutes and cases, and determine what facts you need to elicit to lay the groundwork for a successful motion for summary judgment. Sometimes you’ll come across a case similar to yours, where certain facts led the appellate court to affirm a motion for summary judgment. Use that case as a guide. If you can elicit the same facts in your depositions as the facts referenced in that case, then you can reference the facts you elicit and the case you found as the foundation for a successful motion for summary judgment.

Take a deposition to improve your settlement posture. If you can dismantle the other side’s key witness in deposition, then you’ve gone a long way in changing your client’s position when it comes to settlement talks. Think through why the other side thinks this witness makes his case and breaks yours and ask the types of questions that cuts that witness down to size.

Take a deposition to prevail at trial. What are the admissions you would want to hear at trial? What are the statements you want the jury to hear? Think through the themes you want to have reverberate through trial and then think through the facts and statements that play into and support those themes. Working backwards from there, use the depositions to build a foundation for those themes. Remember, you never want to ask a question of the witness at trial you don’t know the answer to. Therefore, you want to use depositions to get the admissions you need, because if you didn’t ask the questions at deposition you run a huge risk asking them for the first time at trial.

Before taking your next deposition, consider how it advances your case. How it proves one or more of the elements of the cause of action or undermines one or more of the affirmative defenses if you’re plaintiff’s counsel, or how it undermines one or more of the elements of the cause of action or supports one or more of the affirmative defenses, if you’re defense counsel. If the deposition doesn’t accomplish any of this, consider whether it is worth taking at all.