Dr. Ken Broda-Bahm | Holland & Hart
So, your deposition has been scheduled, and you’re just starting to wrap your head around what is in store for you. Your lawyer has already stressed that you are not in the driver’s seat at this stage: The deposition is the other side’s process. Because of that, it helps to devote some thought to what they are looking for. A realistic and complete understanding of your adversary’s goals can help you prepare for your own testimony.
Every case and every opposing counsel will be different, and there may be unique factors in your own situation. At the same time, there are strong currents of common practice that underlie the ways most attorneys conduct their discovery. In this post, I’ll provide an overview of three common and distinct goals that motivate the other side’s deposition. These are goals that every witness should understand and adapt to.
When Taking Your Deposition, Your Adversary Wants to….
Discover
They want to flesh out the facts and to know in advance what you are going to say on all of the major issues.
This, of course, is a proper goal of a deposition: The other side has a right to know what you’re going to say on the relevant issues. So, as the witness, you will want to review what you know of the facts, firm up what you do and don’t remember, and take inventory of what you think on all the topics within your expected sphere of testimony. The other side’s goal is to commit you to a substantive answer in advance of trial, so your answers will have lasting consequences. Should it ever get to trial, you won’t need to give exactly the same answers on the stand, but you will need to be basically consistent with what you say at your deposition, or ready to explain any differences.
Enlist
They want to see if you will help them to support their case theory, or at least part of their story.
They can make their case without you — they have their clients, experts, and arguments. But it helps them if you can add support to at least a part of their case. For that reason, they will see if they can enlist you in that effort by asking you if you’ll accept some of their premises. They may want you to concede specific facts or principles because it gives them a stronger position to argue from if they can stand before a future jury and say, “She already agrees with this.” Of course, if it is true, it is true, and you lose credibility by fighting it. But quite often, what opposing counsel presents to you isn’t just a simple unvarnished fact, but something with selectivity and spin applied to it. It is critical to pause, think, and answer in your own words. And don’t help them where you don’t need to.
Assess
They want to size you up to see how you come across, and especially how you will present yourself if you testify in trial.
Most cases these days are resolved without trial, but they’re often resolved with an eye toward how a trial would have gone if it had happened. Will the witness be confident or nervous, certain or doubtful, unflappable or combative? Performing well on all of those metrics can contribute to the case assessment that each side is making. Plaintiffs in particular don’t want to invest time and money into cases that are unlikely to net a good return. So for the witness, your goal is to testify well, as if to say, “This is how I’ll be on the stand, so factor that into your calculations.”
Ultimately, the goal is to move from the deposition feeling mysterious and uncertain to it being known and controlled. By discussing the facts, practicing the expected testimony, and knowing the other side’s goals, you’ll be better prepared.
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