Enrico Fermi, Nobel Prize winner for Physics in 1938, once said, “There are two possible outcomes: if the result confirms the hypothesis, then you’ve made a discovery. If the result is contrary to the hypothesis, then you’ve made a discovery.”
Much like a scientist who tests a hypothesis, you need to test the theory of your case. If you represent a plaintiff and your case becomes stronger, such a finding will obviously affect the lawsuit’s value. If you uncover facts that undercut your theory, the value of the lawsuit will be less, but you may find a way to minimize the damage before trial. Generally, a deposition is the best way to determine your case’s strengths and weaknesses, but there are occasions when it is not.
There are seven reasons to take a deposition. In addition to the one mentioned above, let’s look at two of the most important ones.
Most lawyers see depositions as fact-finding exercises. While this is true, they have a larger purpose. Great trial lawyers use depositions to determine how credible a witness will be at trial. It is a unique situation where you can look the witness in the eye and assess his demeanor. This determination is critical to deciding the settlement value of your case and whether you should go to trial.
Unfortunately, there may be times when you feel pressure from a client to save money by not taking a deposition or by having an associate with a lower billing rate take the deposition. But you are responsible for the ultimate outcome of the case and cannot delegate this task when there is a key witness. Only by seeing the witness in person and hearing his story can you accurately perceive his credibility. While a videotaped deposition by an associate would alleviate this problem to some extent, a face-to-face meeting is the only way to determine how the witness will react to your questions at trial.
Another important reason to take a deposition is to build a record of inconsistent statements from the witness that can later be used to impeach him at trial. For example, in a car wreck case, a plaintiff may testify in his deposition that after the accident the defendant was concerned about his injuries and was helpful in summoning an ambulance. However, at trial, the plaintiff may try to embellish his story and testify that the defendant was not helpful but rather belligerent and angry. If you had not taken the deposition, you would lack the one tool to discredit the plaintiff’s trial testimony. Having taken the deposition, you will be able at trial to impeach the witness in the following way.
Example: Deposition provides inconsistent statement
Q. You testified on direct that the defendant was belligerent and angry at the scene. The truth is that my client was concerned about your injuries and helped in calling for an ambulance.
Q. Do you remember giving your deposition in this case.
Q. You were under oath?
Q. I would like you to read along silently as I read from page 17 line 2. Isn’t it a fact, you were asked the following question? Was the defendant concerned . . . .