No other pretrial discovery process rivals the deposition for its ability to alter the course of civil litigation. Depositions alone bring litigators face-to-face with key witnesses, experts, and the parties themselves in a trial-like setting where the deponent can be heard from directly, largely without the assistance of counsel.
Through depositions, litigators discover case-critical information, avoid surprises at trial, obtain documents, preserve testimony, pin the opposing party down to a particular version of the facts, and narrow the contested issues for trial. Through depositions, litigators gain valuable insights into whether the witness will be perceived as credible, or with skepticism, by the judge and jury.
Depositions make, or eviscerate, even the most carefully constructed trial strategies.
This article summarizes the four reasons why litigators conduct depositions in civil litigation.
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To Preserve Testimony or Other Evidence
In federal courts, Rule 27 of the Federal Rules of Civil Procedure authorizes depositions for the purpose of preserving testimony or obtaining evidence that is likely to be lost prior to filing the lawsuit. The imminent death of a personal injury victim is one reason why a pre-suit deposition might be sought.
Pre-suit depositions are by leave of court only. Under Rule 27, the party seeking to conduct the deposition must allege:
- the petitioner expects to file a lawsuit but is presently unable to do so
- a summary of the expected lawsuit and the basis for federal jurisdiction
- the information likely to be obtained from the deposition, and
- identifying information regarding the deponents and expected adverse parties
Rule 27 authorizes the court to grant requests for pre-suit depositions based on a finding that obtaining the expected testimony or evidence may prevent “a failure or delay in justice.” Most state jurisdictions have similar rules permitting pre-suit depositions.
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To Obtain Documents
The need to obtain and authenticate documents is often the only reason why a deposition is conducted. During discovery, documents may be sought from parties and from non-party witnesses. Because questioning during depositions in commercial litigation is typically based on the contents of documents, in most cases the documents requested in the notice of deposition (and accompanying subpoena or documents request) must be produced well in advance of the deposition.
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To Evaluate, and Learn From, Witnesses
Depositions of parties and key witnesses are a prime opportunity for litigators to learn whether the opposing party can in fact prove the allegations alleged in the complaint or answer. By questioning deposition witnesses in a trial-like setting, under oath and subject to cross-examination, a litigator can:
- evaluate the witness’s credibility, based on the ability to observe key events, or interests and biases regarding the case
- discover the names of other potential witnesses
- discover the identity and location of documents
- evaluate the reasonableness of the witness’s testimony in light of other known evidence
- extract admissions from the witness that narrow the issues for trial
Not all information obtained during a witness or party deposition is admissible at trial. At a discovery deposition, the legal threshold for exploring topics is mere relevancy, whereas at trial the standard for admissibility is more rigorous and complex. Moreover, experienced litigators aim to have their best witnesses live in court before the judge or jury whenever possible – not presented to them via transcripts or video recordings.
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To Support Dispositive Motions
Finally, depositions promote the efficient resolution of litigation by providing evidentiary support for summary judgment motions or other pretrial processes that have the effect of eliminating, or narrowing, the legal issues requiring a jury’s time and attention.
In federal courts, a party can obtain summary disposition of a claim or counterclaim by demonstrating that there is no genuine dispute of material fact and that, because no factual dispute exists, the moving party is entitled to judgment as a matter of law. Successful summary judgment motions are powerful tools to have claims dismissed early in litigation or to encourage settlements prior to trial.
Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment must be supported by citing “depositions, documents, electronically stored information, affidavits or declarations, stipulations” as well as admissions, interrogatory answers, or other materials. Most states have similar rules authorizing summary dismissal of claims.
Deposition testimony – particularly testimony in the form of admissions that a factual basis for a particular claim is lacking – is a key source of support for summary judgment motions in modern litigation. Summary judgment motions also can stimulate the opposing party to notice a deposition in order to demonstrate the existence of contested facts that should prevent the court from granting a summary judgment motion.
Additional Benefits of Depositions
Depositions have other unique benefits for litigators. Unlike a trial, a deposition can be set at a time and place that is convenient for all litigators involved in the case. Depositions offer litigators the opportunity to excel during the trial by giving advance notice of a witness’s likely testimony. And depositions, when conducted remotely, can advance civil litigation without the need to incur travel expenses or the costs of attorneys’ time spent traveling to an in-person deposition.
For further information, see our recent article on the four principal types of deposition used in civil litigation practice.
