Monday, January 22, 2007

Depositions Part 2

You CAN win a case taking your opponents deposition.

It won't be true in every case, but there are some cases where you can see it might happen, and you should have a strategy regarding how you are going to do it. Taking a deposition is all about "nailing down facts". I like to question a witness about something that I KNOW is in a document, before I question about the document. If I can elicit testimony about how a document was produced, and the witness' awareness of it, and its reliability, I go for it. When I then produce the document and ask for specific identifications and admissions, the witness cannot escape.

Sometimes a witness will make a stunning admission during a deposition. If you pick up on this, do not tip your hand, but DO have the witness confirm what he has said, and keep narrowing down the questions to make the admissions stronger. Don't let on to what you have, but KEEP GOING for more, as much as you can get.

If a witness is being evasive about an issue, do not accept this at face value, make a record that helps you if you need to make a motion to compel. Witnesses will often admit that a document or record exists "but its not here". Confirming that it exists, and where it might be, and what its all about, are all worth making a record.

As mindful as I am about leaving "openings" for my own witness, I really try to close all the openings for an adversary. If I think something happened a certain way, but there are possible other ways, and the witness will testify in a way that closes off the other possibilities (if only you ask).....ASK!!!!

I am almost never confrontational with opposing witnesses at a deposition. I try to be clear and calm and direct. I try never to let them fluster me, and I want to convey that I have all the time in the world, and that I will keep asking questions until they answer what I want to know. You would be surprised how often an initially belligerant witness will capitulate and start answering directly, if they know you are going to keep at it, and not embarrass them.

If you think the witness may not appear later and his transcript will be used, prepare your questions this way, so you have a useful transcript.

If you got almost everything you wanted and needed, and think you can win the case on a motion for summary judgment, go for it. A motion for summary judgment is an overlooked discovery tool. More on this tomorrow....

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