A few months back I gave some tips on preparing for depositions. I did not, however, go on to talk about taking depositions. Instead, I switched gears and started talking about cross-examination. That was intentional. You need to understand how cross-examination works before you can take an effective deposition.

Why is that? It's because--

The sole purpose of taking a deposition is to get impeachment material for cross-examination.

Let’s discuss.

A Refresher on Impeachment Material

First, let’s start with a brief reminder of what it means for something to be “impeachment material.” If you need a full refresher, please re-read my post on impeachment, but, in essence, impeachment material is a statement by the witness that you can turn into a question—using the exact same words. That way, if the witness doesn’t concede the point on cross-examination, you can read that statement to the jury.

For example, in my previous post I gave an example of witness who had testified as follows in a deposition:

Q. What were you thinking when you said you expected the company to meet its sales projections for the quarter?

A. Well, to be honest, I can’t remember exactly what I was thinking when I said that. I mean, yeah, I knew it wasn’t accurate, but I just felt like… you know, I had to say something.

Which allowed the attorney on cross to ask:

Q. When you said you expected the company to meet its sales projections for the quarter, you knew that statement wasn’t accurate, didn’t you?

Notice how the cross question exactly matches the bolded language from the deposition. That’s what you need to get from your deposition – clean answers that can be turned directly, and exactly, into cross-examination questions.

I also noted the following about questions that don’t meet that standard (sorry for quoting myself):

But what do you do if your impeachment material isn’t exactly clear? What if the witness understood your question at the deposition, but on reading it over, the question is ambiguous? What if it seemed clear what the witness meant in the deposition, but now you realize his language was a little vague? Or what if the key nugget of testimony was buried in a longer answer that muddies things up? The answer in these cases is simple: You do not have impeachment material. 

And so, here, I’m taking this point a step further: not only are unclear answers in depositions not impeachment material, they also are just generally not that helpful. You shouldn't be satisfied with getting those kinds of mushy, imprecise answers in a deposition. What you need to get from your depositions is impeachment material for cross-examination. Nothing less.

Depositions at trial

The reason it is so important to get impeachment material in your depositions is because, most of the time, the deposition transcript is not going to come in as evidence at trial. Important witnesses are typically going to testify live, and so the evidence that goes before the jury is going to be what they say on the stand, not what they said in a deposition. Accordingly, if you can’t turn your deposition material into live testimony on cross, you don’t have the evidence you need.

I said “most of the time.” It’s true of course that deposition clips are sometimes played or read at trial, typically when the witness is unavailable. That doesn’t really change this calculus for a few reasons. First, you can’t count on it. It’s very hard to know at the time of the deposition whether or not the witness will ultimately be available for trial. Second, if you do have the option to play a deposition clip over live testimony (for example, a 30(b)(6) witness), it is rarely something you want. Nothing is more boring than watching recorded deposition testimony (except, hearing it read by a lawyer). Finally, if the clip is played, you aren’t going to want the jury to see some meandering, vague answer—you are going to want them to see a clip that is as clean as what you would have elicited on cross.

In short, in order for testimony you get in a deposition to be reliably usable as evidence, you need to be able to use it on cross-examination to impeach a witness.

Some Counterpoints

I’ve discussed this topic with a number of litigators, and a lot of them initially balk at the notion that the sole purpose of taking a deposition is to get impeachment material. Let me address a couple of the common objections I hear.

Discovery. A common counterpoint is that a deposition can be useful for pure discovery--to understand or learn background facts in a case that will lead to useful evidence, even though you’d never put those background facts in front of the jury. For example, you might depose a witness on how a company stores its electronic records. You never intend to put those deposition answers into evidence, but they will help you to formulate discovery requests. That’s a fair enough point, and no doubt there are millions of pages of deposition testimony taken on subjects that ultimately are never put before a finder of fact. My argument, though, is that you should still take that testimony as if you were going to use it on cross-examination.

Why? Imagine you take this extensive testimony on how a company stores its electronic records, use that to formulate some precise discovery requests, and then the other side objects and says that is not how their records are stored. So, you file a motion to compel, and you cite the deposition testimony. What happens when the judge says she is going to hold a hearing on your motion to compel? That’s right; you need to be prepared to cross-examine that witness at the motion to compel hearing. I hope you got impeachment material in the deposition…

Summary Judgment. This is a similar point. Sure, plenty of deposition evidence gets cited in summary judgment motions and the case gets resolved at that stage. But it’s hardly something you can depend on. You can’t plan to win your case on summary judgment, and if your summary judgment motion is denied, how are you going to get your deposition evidence in? Yep; cross-examination.

Expert Testimony. Some people will argue that you can use deposition testimony to provide material for an expert to review and then rely on in the expert’s opinion testimony. That’s true—experts do have the ability to rely on testimony (even inadmissible testimony) to formulate their opinions, and then they can provide those opinions to the jury. But to my mind, this isn’t really much of an answer. Sure, your expert can say, I read John Smith’s deposition, and based on that, it is my opinion that the Defendant didn’t do X, Y, and Z to prepare its 10K. But what do you do when the other side calls John Smith as a witness at trial to say, um, actually we did do X, Y, and Z. You better be ready to cross-examine him.

All of this boils down to the same thing. It isn’t that deposition testimony isn’t used in other places than cross-examination. Of course it is. Indeed, most cases don't ever make it to trial and cross-examination. My point is that you can only reliably use deposition testimony in these other places if you are confident that, if push comes to shove, and you find yourself in front of a judge in a hearing or jury at trial on these issues, you can elicit that same testimony live from the witness on cross-examination.

To do that, you need deposition testimony that can be used as impeachment material on cross-examination.

* * *

Let me end this post where I started. 

The sole purpose of taking a deposition is to get impeachment material for cross-examination.

That's how you need to think about the testimony you are eliciting in depositions. Can it be used on cross-examination? If it can't, my point is that you don't really have the testimony you think you do. Whether or not your case actually goes to trial, whether or not you actually end up needing to use the testimony you get on cross-examination, the question of whether you could use the testimony on cross should be the ultimate test you use to determine if you got the testimony you wanted from a deposition.

Now, does all this mean that your depositions should consist entirely of crystal clear, perfectly precise questions that can be used in cross-examination? Not at all. The beauty of depositions is that not every question needs to be perfect, or even good. I’ll talk about that in my next post.