Deposition goals differ from trial testimony goals

Because deposition goals differ from trial testimony goals, deposition preparation should look different than trial testimony preparation.[i] Whereas trial testimony is intended to elicit predetermined information (answers) to predetermined questions, the purpose of depositions is to learn what information that witness may have.

There are essentially three goals in any deposition:

1. Learning details about the witness’ knowledge of the disputed facts
2. Pinning down that witness (and determining the limits of the witness’ knowledge) so that the witness cannot present more damaging testimony at trial without looking like a liar
3. Seeing if one can get useful admissions from that witness

Preparation for a deposition should focus on questions that achieve these goals. Trial testimony outlines should be a series of “answers.” At trial, I will simply ask questions designed to elicit those answers or, on cross examination, simply state the answer in question form.  In contrast, deposition outlines should be a mix of open-ended questions, list question, and “why” and “how” questions.  Specific questions intended to “pin” the witness to specific admissions are part, but not the main part, of the mix.

While these pinning questions will certainly be repeated in that witness’ trial testimony outline, these other questions are intended to elicit previously unknown information.  Much of that testimony will either be irrelevant or, if elicited at trial, help the other side’s case.  That testimony will not be elicited by me at trial. Some of this testimony will be helpful to my client’s case and that testimony will be incorporated into the deponent’s, and often other witnesses’, trial testimony outlines.  Some of this testimony will be lies, and my client and I will work on establishing these lies in the deponent’s, or other witnesses’, trial testimony outlines.

If the goal of trial testimony is to establish information, the goal of deposition testimony is to gain information.  A deposition is successful to the extent it elicits new information that can be used by the deposing party at trial.  The questions in each should be designed to achieve these differing goals.

[i] This blog assumes the deposition is for discovery purposes.  A deposition that is being taken de bene esse—with the intention of submitting it at trial in lieu of live testimony—has the goals of trial testimony.