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Of all the many aspects of civil litigation that attorneys can shape to their client’s advantage, the skill wielded when taking adverse depositions most often, most dramatically determines case outcome, whether by settlement or trial.
Yet, awkward truth be told, no law school or law firm (of which I’ve become aware in the course of presenting deposition seminars to more than 30,000 litigators in 40 states) teaches the eminently learnable discipline of deposition cross-examination: the one, right, logical way to maximize the questioner’s opportunities in every adverse deposition, in every case, for the rest of time. As a consequence, mediocre deposition-taking abounds — mediocre, that is, in comparison to what should be achieved.
That discipline can be encapsulated in a syllogism: Trial is argument. Deposition is trial. Thus, deposition is argument.
- Trial is argument. Throughout the trial, virtually all the decisions made by the trial attorney are driven by the desire to successfully shape the persuasive force of the two competing final arguments. The only exceptions are the handful of motions that contend that the determination of what’s true should, as a matter of law, be taken from the jury.
- Deposition is trial. If the adverse deposition is done right, and the trial cross-examination of the deponent-become-trial-witness is done right, then, at its core, the trial cross-examination is a re-enactment of the best of the deposition testimony. If the deposition is done right, then the booklet produced by the court reporter can properly be called a transcript. If, however, the questioner treats the adverse deposition as a discovery device, as some supersized set of orally propounded interrogatories, whereby the paramount goal is to learn the deponent’s story, then the questioner must conduct a no-transcript, risk-laden trial cross-examination of a witness who wants the questioner to fail — a cross-examination often squeezed by a time-challenged trial judge, and a cross-examination whose failures, whether in substance or stagecraft, are seen by those who will vote on the case’s outcome.
- Deposition is argument. Despite widespread belief in its existence, there is no such thing as a discovery deposition. All depositions are trial depositions, no exceptions. Of course, there are indispensable discovery components to every deposition. Yes, the questioner needs to learn the deponent’s story. But why? To allow the questioner in the “laboratory” of deposition to perfect the value of the favorable arguments, thoroughly attack the unfavorable ones and identify the universe of case theory arguments contained in the deponent’s story. Specifically the questioner must do this when there is no judge growling, “Let’s move on”; when there is no risk of the questioner failing or flailing in front of a voting audience; when the adverse deponent doesn’t know nearly as much as he will by the time of trial about the questioner’s case theory arguments, and what he can safely lie about; while the questioner still has the opportunity to conduct pretrial discovery into the adverse deponent’s claims; and while the questioner has sufficient time before trial to adjust his case theory and/or settlement position. All other purposes of an adverse deposition are subordinate to the questioner’s shaping the trial’s two final arguments. Period.
Don’t Waste Chance to Impeach
As a consequence of this logic, a central precept of deposition orthodoxy, and a major cause of the pandemic of mediocre deposition-taking, must be repudiated: The questioner should save impeachment evidence against the deponent for surprise at trial. This nugget of “wisdom” is wrong — crazy wrong! Of the dozen-plus reasons why this is so, here’s the cut-to-the-chase reason: Impeachment evidence represents potential value to the questioner’s case, value that can be obtained from only two sources: the opposing side or the jury. The strategy of saving impeachment for surprise at trial eliminates the opposing side as a source because it never gives value for evidence it doesn’t know about. That leaves the jury, if the case goes to trial. But only 2% of civil cases go, according to a 2002 American Bar Association study. Settling a career of cases while keeping the impeachment evidence secret — and thus obtaining zero value for it — should constitute malpractice.
But isn’t a litigator who tactically conceals impeachment evidence during the deposition free to disclose it in settlement talks? Absolutely. Nothing prevents a litigator from squandering the opportunities afforded by deposition, while the under-oath witness is obligated to answer, and later choosing to inform the doesn’t-have-to-respond witness and opposing counsel well before trial about what was supposed to be an important trial surprise. Indeed first squandering, then informing can be done, but it constitutes stupidity!
Deposition cross-examination is a rigorously logical discipline comprising dozens of rules. Law schools and law firms should have taught every civil litigator the logic and the rules but they did not. The result: tons of deposition booklets; few ready-to-read-at-trial transcripts.
Robert Musante is a full-time teacher of seminars on deposition cross-examination skills. He was a lecturer in trial advocacy at the University of California, Berkeley School of Law from 1984 to 1999.
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