Deposition Preparation: Why Depose a Witness
Aren’t depositions fun? Hour after hour of barbed questioning can make for a rather treacherous afternoon for the hapless witness. That’s not to mention the challenges to his professional integrity, expertise and character he may well have to endure.
No matter how unpleasant a deposition promises to be, a lawyer can take steps to prepare both himself and her witness. Though a deposition hasn’t the pomp and circumstance of a trial, an unwary deponent and attorney can lose their case if they fail to ready themselves.
Each deposition considered must be analyzed in terms of purpose. Is this deposition for purposes of summary judgment? Do I want to lock the witness into a particular position? Am I simply seeking to discover what knowledge the witness possesses about important events in the case? You may simply be curious about the substance of what the witness’ testimony would be if s/he were to be called to testify at trial. If the witness is an expert, you will want to learn not only the expert’s opinion about relevant issues, but also the basis of this opinion, and the qualifications to render it.
Other motivations for deposing a witness include:
• The need to assess a witness’ demeanor, character and credibility;
• “Freeze” the testimony. A deponent’s testimony under oath is pinned down with certainty, and if she changes her testimony during the trial, her recollection can be refreshed with the deposition transcript, or she can be impeached.
• Perpetuate testimony. If, on the day of trial, a subpoenaed witness fails to appear, counsel can read the deposition to the judge or jury or show a video recording. Sometimes counsel will ask an associate to take the witness stand, then read the deposition questions and have the associate read the answers.
• Neutralize a potential harmful witness by eliciting testimony that would compromise his/her eventual trial testimony.
• Obtain information from a friendly witness that supports you client’s case. “Officer, it is true that my client was courteous and cooperative at all times?”
Your objective will, or should, predetermine what questions you ask and how you ask them. If you merely want to assess the witness’ demeanor, the deposition may be brief and cordial. If you want to neutralize an adverse witness, your line of questioning will likely be aggressive. Keep your motivation in mind when you sit down to prepare.