Preparing for Success in Business Litigation: Mastering the Deposition
A deposition is a critical discovery tool utilized by lawyers to obligate witnesses and opposing parties to provide sworn testimony. Typically, depositions serve three primary purposes: to gather information, extract admissions, and validate case theories. As a business litigator and former prosecutor, I have observed numerous attorneys adeptly conduct depositions, though many fall short of this mark. A well-executed deposition can significantly clarify the case and its facts, often leading to a swifter and more favorable resolution. In optimal situations, a deposition can cause the opposing party to witness their case unravel, particularly if the attorney successfully extracts valuable information, gains admissions, and either strengthens or weakens a witness’ credibility, aligning with the attorney’s case theory.
In a recent business contracts case, we represented a client seeking redress for a breached contract. The defendant contended that a third party, not the defendant, signed the contract. During the deposition, I secured several admissions from the defendant that: (a) weakened the credibility of her defenses; (b) provided testimony corroborating one of our alternative case theories—that the third party possessed authority to sign the document on her behalf, and that our client was justified in relying on this apparent authority; and (c) revealed the existence of additional documents supporting our client’s claims. Consequently, the case was settled at the deposition table, with our client receiving full damages and attorney fees, as the opposing party recognized our likely triumph at trial.
Success in a deposition requires meticulous preparation long before the deposition day itself. Below are some practices that have proven instrumental in my deposition successes:
1. Strategically timing and ordering depositions, considering required documents or discovery, time-related memory degradation, witness availability, both parties’ financial capacities, and other pertinent factors.
2. Thoroughly familiarizing myself with the case facts, which entails discussions with the client, reviewing pertinent documents, conducting informal investigations, and engaging in written discovery to acquire necessary information.
3. In some cases, having the client or an expert present to take notes, provide additional information or queries during breaks, which can prove invaluable given the potential for unexpected revelations during the deposition.
4. Developing multiple case theories and conducting necessary legal research prior to the deposition to ascertain the requisite facts for supporting each theory.
5. Outlining deposition themes and issues while eschewing prewritten questions, as these can impede active listening and follow-up querying. I typically share my outline with the client pre-deposition to glean additional insights.
In business litigation, the opportunity to depose a party or witness is often singular, making it imperative to solidify the necessary facts for a favorable outcome. Should you find yourself embroiled in a business-related dispute and seek a free consultation, please do not hesitate to contact us via the details provided on our website.
