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Trial by Deposition

As litigators and litigation professionals, the Cloud Court team focuses on building tools that litigation teams can leverage to achieve superior outcomes in their cases. We correspond with a wide spectrum of litigation attorneys, testifying experts and other litigation professionals to better understand the contours of their practices and understand their pain points and future needs. These conversations continuously broaden and refine our own thinking about depositions.

Litigation data, from both federal and in state courts and across a wide variety of practice areas, is unambiguous: about 98% of cases are resolved well in advance of trial. Resolutions come in many forms (voluntary dismissal, dismissal by the courts, negotiated resolutions (settlement)).

It is our contention that of large civil litigation cases that make it to discovery, most are “won or lost” during depositions, and not trial. Litigators need tools that could materially impact cases during crucial moments, and the most crucial moments occur during depositions.

How is this true? Let’s start by putting a box around the types of litigation we’re talking about. The kinds of litigation where this idea is most visible include:

  • Large dollar amounts in question: 7-figure cases, “bet the company” cases

  • Millions of pages of documents

  • Matters with a duration longer than a year – usually multiple years

  • The plaintiff and/or the defendant is a large corporation – or perhaps a state AG

  • The case deals in complex topics, e.g., medicine, state or federal public policy, utilities, high tech manufacturing, aircraft engine design, transfer pricing

  • Multi-district litigation

  • Mass torts

There are many more criteria, but the clustering should be apparent. What are some things that these types of cases generally have in common?

  • Resolving the case early (certainly avoiding trial) saves significant sums of money and stress, often for all parties

  • Discovery involves massive amounts of information, and it’s not possible for one person to try to read and recall all of it for later reference

  • Neither side can achieve their goals without the help of a team of attorneys, document reviewers, experts, and other specialists

In our experience, we’ve seen big cases resolve faster and earlier when one team or the other has the capability to quickly find relevant documents during a deposition. When those documents refute the testimony of the witness, opposing counsel takes them down. When those documents have substantiated the witness’ testimony, defending counsel uses them to great effect, often by re-orienting a witness with documents during a break.

In either case, when counsel fully leverages the eDiscovery database at their disposal, the outcomes are measurably better. When counsel leverages technologies that enable them to collaborate live with a remote team, such as instant messaging or realtime transcription, they have more chances to defend or impeach a deponent. Instead of “keeping the powder dry” on potentially beneficial information during a deposition, instead of rehabilitating a witness much later -- or during trial, they use everything they have to defend or impeach the deponent right there and then. All out blitz.

You can win a case in the deposition, even a closely contested case that could go either way, if you have the right tools and the right perspective.

Does that mean we think every case is a win/lose based on finding one “smoking gun” document? No. But you do need a system, a series of repetitive steps. A methodology that allows litigators to continuously measure and refine their effectiveness in and around depositions will drive meaningful incremental improvements. Over time, it will improve outcomes on successive cases – sometimes dramatically.

Forthcoming blogs will delve into examples and lay out a “deposition lifecycle,” a methodology for approaching, taking and defending, and following up on depositions for maximum benefit to your client. We’ll also share insights, strategies, and even other tools from litigation attorneys from law firms, in-house departments, and other experts.


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