Professional Tools for Litigators: Depositions

By far the most effective discovery tool in litigation, but also the most expensive, is the deposition. So why, when and where depositions should be scheduled – or not scheduled – are often critically important questions that must be given serious consideration both by litigators, and also by the general counsel who supervise them.

Answering many of these questions will be made easier by always asking what each particular deposition is to be used for. Basically, there are four purposes for a deposition, in addition to the standards of gathering basic facts, learning the identity of other witnesses, tracing the genesis of disputes, and establishing the foundation for the admissibility of documents.

The first purpose is both to educate your side about and lock in the testimony of witnesses regarding the facts and positions being taken, and to impeach witnesses who later present different facts and positions.

The second purpose is to obtain and preserve for use at trial the testimony of important witnesses who may later be unavailable for trial due to death, disease, disability, etc., or those who are not subject to the jurisdiction of the court’s subpoena power. (Of course, we in California have the advantage of being able to “lure” witnesses into our jurisdiction by offering to fly them here – along with their spouse, if necessary – for a Friday deposition, and provide them with a hotel near Disneyland, Fisherman’s Wharf, Sea World, etc. so they can “rest up” prior to their return flight the following Monday. For some reason this works particularly well for people from the East or Mid-West during the wintertime, and it is much less expensive to bring the witness here instead of flying all of the attorneys to the witness’ place of residence.)

Third, depositions can be used to learn about the nuances of the opposing party’s case. This includes learning about things that cannot be gathered from documents and pleadings, such as an opposing witness’ knowledge, impressiveness and general demeanor. And fourth, you can use the deposition to educate and even intimidate opposing counsel and/or parties about how organized you are, how aggressively your case will be pursued, and how legally vulnerable their positions are.

But you are still left with many additional questions. For example, do you want to take the depositions of the top officers of opposing party first, or only after some of the foot soldiers or third party witnesses have been deposed? With the understanding that the high-level officers will probably have been briefed by their counsel about the questions and answers given during the prior depositions of their subordinates, sometimes it is effective to schedule the executives first so they can “pontificate” about the guidelines that are always required to be followed, and thereafter you can show that those guidelines were almost never used. Other times, depending upon your theory of your case, the order should be reversed. But those factors should be considered.

An additional tactic that is often productive is to schedule a factually helpful deposition right before a mediation or mandatory settlement conference. This puts the opposing party more off balance, which can result in a more favorable settlement for your client.

And where should the depositions be held? Depending upon various factors, they can be held in your office, so you can show how many resources the opposing side is facing. They can also be held in the opposing party’s office, which will afford you the opportunity to “get the feel” of your opponent’s home turf. In addition, this will also deprive the deponents of the excuse that they “left the critical document back in their office.” But scheduling the depositions in the offices of opposing counsel is not a good idea for the same reasons already given, but in reverse.

Who should attend the depositions? Obviously all counsel, the deponent and the reporter will be present, and, unless the court says otherwise, the CCP also allows all parties to attend. But what about your expert witness, or the opposing expert, or the spouse. parent or child of the deponent or party? Basically, unless counsel stipulate on this matter, the attendance of these people will be left to the court when responding to a motion for a protective order. But these are things that you want to consider in advance, and act upon – if it makes a difference.

How should depositions be set? The formal procedure for noticing the deposition of a party or setting one for a third party witness is delineated in the CCP, and will not be repeated here. But the professional approach is to pick up the telephone and work out a schedule that is convenient for opposing counsel and for the witnesses. I believe this so much that I almost never would order sanctions (otherwise known in my courtroom as “cost re-distributions”) for the non-appearance of witnesses or counsel unless this professionalism had been extended.

In preparing to take a deposition, it is virtually always beneficial first to go over the facts and documents with your own client. This is a good idea for two reasons. The first is that your clients are usually (but not always) your most important resource in understanding the background and nuances of the case. The second reason is political, because if you keep your clients informed of the progress and obstacles in the case, they will feel more included and also be more understanding if things do not go as favorably as they might. And this also means they will be less likely to raise disputes when they receive your bills.

An unfailingly good approach in preparing to defend a deposition of your clients or friendly witnesses is to instruct them, no matter what, to testify truthfully! Literally tell them, both for reasons of integrity as well as tactics, they must always tell the truth. Of course, you will help them to put the truth into the best light, and also will show how the problem areas can be defended or discounted. But make it clear that if they are not prepared to tell the truth you will not represent them, and they will most likely hurt their cause unnecessarily.

You should also instruct your clients and friendly witnesses always to listen to the question, think about the question, and then just answer the question that was asked. Thus they should not volunteer additional information for any reason, including reacting to the facial expressions of opposing counsel suggesting disbelief, or suggesting that there must be something more to the answer. Furthermore, if they don’t understand the question, they should simply say so. In pursuing these instructions, remind your clients that they cannot win their case in a deposition, but they can lose it. And besides, it is not their purpose to help the other side, instead it is simply incumbent upon them truthfully to answer the questions they are asked. Finally, instruct them that attempts at humor almost always rebound against witnesses, so leave their humor at home.

Another useful approach is to number all exhibits consecutively in every deposition from the very beginning. That means that the exhibits for the first witness will have the same number during the subsequent depositions, and will also be marked with the same number at trial. Using this procedure will result in much less confusion for all concerned.

Another practical tip is always to be aware of the record. So often at trial, although the testimony was clear to those who had attended the deposition, when the transcript is read at trial where the witness had been referring to “this” document, or when looking at a diagram saying that he went from “here” over to “there,” the deposition testimony itself becomes incomprehensible. And finally when the deposition ends, state on the record the exact procedure that is to be followed to sign and verify the transcript. So often in trial the transcript simply reflects that counsel would use the “standard stipulation,” and then no one knows what that means. Do not let these things happen to you.

James P. Gray is a retired judge of the Orange County Superior Court, and presently works as a private mediator and arbitrator for ADR Services, Inc. He is also the author of “Wearing the Robe: the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2010), and can be contacted at, or through his website at