Most lawyers decide to take depositions out of habit without ever thinking through the consequences of whether they should even be taken in the first place.
There are some serious disadvantages to taking a deposition. First, it can be expensive. Besides the cost of the court reporter, the deposition takes a lot of your time to prepare and takes time away from other important things you could be doing. Is this deposition really worth your time? Moreover, is it really worth double your time? That is, there is a certain tit for tat between attorneys. If you decide to take a lot of depositions, be prepared for opposing counsel to return the favor and take just as many. It is fair to assume that for every deposition you take, you will have to spend the same amount of time defending one.
In addition, by taking depositions, you force the other side to spend time on your case and, therefore, to become better prepared for trial. This is a very significant drawback to taking a deposition. Through the witness’ answers, you will inevitably educate the other side about details it might not have taken the time to learn except for the deposition. But for the important depositions, you need the information even if the downside is that the witness and opposing counsel get educated. A good guide, then, is to take only important depositions and not waste your time taking the less important ones.
Another downside to depositions is that you will necessarily reveal your trial strategy through your questions. Even if you are subtle about your theory of the case, the opposing attorney will at least get glimpses through the topics you cover in the deposition and by sensing from your mannerisms which topics seem important.
Moreover, while you are able to assess the witness’ credibility, the witness is also assessing your demeanor and strategy. Consequently, the witness will be less surprised at trial, since it won’t be the first time he has been confronted by you.
These facts aside, none of the disadvantages should carry the day by themselves except for the most important one: by taking a deposition, you remind the other side to take the depositions of your witnesses. You may inadvertently expose the weaknesses in your witnesses that opposing counsel may not have otherwise discovered if he had not taken their depositions.
- Expensive (money and time).
- Reminds opposing counsel to take depositions of your witnesses.
- Forces opposing counsel to come to trial much better prepared.
- Your questions reveal your trial strategy.
- The witness can assess your demeanor and strategy prior to trial.
Before you decide to take your next deposition, go through this checklist and you will be much better prepared to make the right decision.