In contrast to a few decades ago when trials were common, studies show that over 90 percent of all lawsuits are settled before trial. For those cases that settle, the deposition is very often the event that becomes the turning point. It is the time when you cause the opposing witness to collapse, or your witness irreparably falters. Consequently, the deposition becomes the moment when one side realizes it cannot recover, and the case needs to be settled.
Despite the critical importance of depositions, most lawyers do not take them seriously enough whether they are asking the questions (known as taking the deposition) or asserting objections when their client’s deposition is being taken (known as defending the deposition).
When a lawyer is defending a deposition, he incorrectly believes that any mistakes his witness makes can be corrected later. Such conventional wisdom could not be more wrong. While it is true that the witness can make changes to the deposition transcript after the deposition, any substantive changes can be used against the witness with devastating effect at trial. For example, at trial, opposing counsel could accuse the witness, “You changed your sworn deposition only after you consulted with your lawyer after the deposition and realized that what you said the first time would really hurt your case.” In short, for all intents and purposes, deposition testimony is trial testimony. A bad deposition can’t be fixed and can ruin a case.
Likewise, most lawyers taking a deposition are unprepared. They spend little time learning the law or reviewing documents before questioning the witness. The main reason for this lackadaisical attitude is that the attorney mistakenly believes that he can get prepared when it counts at trial. But since over 90 percent of the cases settle, such a belief is misplaced.
I recently spoke with Michael Brickman, one of the best lawyers anywhere. His immense preparation for depositions pays off in spades. Not surprisingly, his deposition transcripts read like an expertly executed cross at trial. He told me his key to success is knowing the law and the facts better than the witness. He also shared with me some wisdom I will long remember: “[T]he best lawyers are not the smartest but they are the ones that are best prepared, work the hardest, and put in the time.” Excerpts from Brickman’s depositions and his strategies for success are detailed in Turning Points at Trial: Great Lawyers Share Secrets, Strategies, and Skills.