“The deposition is the new trial.” – Jim Garrity, 10,000 Depositions Later podcast
Jim Garrity, an employment attorney based in Florida, has produced scores of podcasts and published multiple books on the topic of depositions. It’s not just an aphorism. The facts support it:
Fewer than 0.6% of federal civil matters are resolved at trial[i]
Litigators always depose witnesses before a trial – if there is a trial
You will almost never depose a witness more than once – so you get one shot to take or defend that deposition well
But why do depositions matter more? Let’s take a step back.
Civil Litigation for the Layperson
For the uninitiated, in any legal matter in the United States, the plaintiff has the burden of proving their case, and they will almost always include testimony as part of that case. In litigation, they often take testimony from witnesses prior to trial as part of the evidentiary discovery process.[ii]
When most civil cases are filed, they have a settlement value – an amount at which the parties would agree to resolve a dispute. It could be $100,000, or it could be in the millions. During the course of a case, however, that settlement amount can fluctuate radically. Most of the time, settlement values shift because of the relative strength or weakness of testimony. And today, almost all testimony is in the form of deposition testimony for the reasons cited above.
Good attorneys are mindful of the fact that they will only question or defend a witness once, and they prepare accordingly. They know that if they fail to obtain an admission from a witness, or fail to vigorously defend their own, those failures have consequences measured in dollars. But so do their successes. $50K cases morph into $10K cases; $1M cases into $100K cases... or $5M cases. The same is true of $1B cases. All because of the strength and weakness of witness testimony.
Why Don’t More People Recognize How Important Depositions Are?
Despite the importance of depositions, most corporate legal teams have no idea what happens during these critical hours. Most never attend them, will not receive a copy of the deposition, or if they do, they won’t have time to review it. And many of their outside counsel prefer it that way.
Why? In our experience, the performance of a witness during a deposition is treated as a surrogate for how they will testify at trial. Since it falls under the umbrella of discovery, and because few people bother to read the transcripts afterwards (if at all), maybe it’s tempting to think of them as a “warm-up.” Or a relatively consequence-free environment. So they half-ass it; it’s billable time and they can largely phone it in because nothing big is going to happen in a depo – unless you do a bad job defending.
This couldn’t be further from the truth. Lawyers should prepare for deposition with the same care that they would take in examining that same witness at trial. Because, unless your practice differs from most, you are not going to trial. Functionally, cases are won and lost in conference rooms, not courtrooms. The surprise admission you gain or fail to gain from an expert, an executive, or a key witness will invariably move settlement discussions in ways that naked documents never do.
Why Deposition Practice Needs to Evolve
There didn’t used to be standards for practicing medicine. Anyone with a knife or some leeches could try to treat a patient. But not today. You would never wheel a close family member into an operating room with someone who isn’t rigorously trained in their field. And if they had diagnostic tests and imaging machines at their fingertips but refused to use them, you’d end the procedure immediately.
Likewise, any attorney can take a depo. But their license to practice doesn’t mean they know what they’re doing. As a consequence, they can do a lot more harm than good. You should never send someone who hasn’t been trained and quantified – or who does not use available knowledge of the adversary’s skills and tactics – to take or defend a significant depo.
But it happens. Despite the indisputable fact that only a tiny percentage of matters will go to trial, law firms still send junior associates to handle taking or defending depositions. Associates receive perfunctory training on how to examine or defend a witness, or they receive none.
On the other hand, effective attorneys bring additional tools to bear such as realtime transcription, exhibit management tools, digitized discovery documents, and perhaps even a digital audio recorder. Seasoned, well-organized litigators will specify multiple transcript formats from court reporters and follow up to make sure that their transcripts are digitally stored and associated with the matter in question. They can pull up testimony text and audio at a moment’s notice for client briefings or settlement discussions.
In their hands, testimony is leverage and depositions are a potential warehouse of opportunity. They approach each deposition “lifecycle” itself with discipline. In each stage – preparation, taking or defending, and analysis and annotation – there are best practices to eliciting the best testimony, preparing and defending a witness, and correlating testimony to other evidence. In the bibliography are some links to notable deposition resources.
In a future post, we will go into why the current state of the industry is entering a period of upheaval and disruption, and what innovative in-house teams and corporate law firms are doing about it.
Bibliography
Notable points: Establish value propositions, then lock down the witness with agreements. Co-opt the expert witness: is there a way to get the expert to support your side of the argument? Save nothing for trial. You don’t want to spring anything on a witness at trial. Most cases settle, so if you don’t pull out all the stops in deposition, you won’t get another shot in trial. Also see part 2.
Looking for continuing education credits? This is a 90-minute MinnCLE webcast featuring a panel discussion among two technology experts and two practicing litigation attorneys.
Visit Jim Garrity’s podcast home page or search your own streaming service for the 10,000 Depositions Later podcast. We guarantee you will find something riveting and useful in this series.
Notes
[i] Source: Lex Machina: 1,579,370 federal cases pending between 1 Jan 2018 and 28 Sep 2022. Of 949,720 terminated cases, 5,457 were resolved at trial, or 0.57%.
[ii] A layperson's resource that elaborates on the basics of depositions is Deposition Academy. The company also offers a wide range of deposition resources for litigators.