In today’s legal environment, civil litigators have precious few chances to showcase their talents at trial. Most civil matters that survive motion practice settle before a jury is ever seated. If you have more than one or two civil trials per year as a litigator, you’re an outlier. Instead, lawyers who ply their trade in civil litigation mostly put their witness examination skills to work in depositions.
Physical and virtual conference rooms, rather than courtrooms, are where litigators get the chance to flex their witness examination muscles. And it’s depositions, not trials, that give lawyers their best opportunity to develop critical evidence and to poke holes in their opponent’s case.
Taking a quality deposition gains you settlement leverage and sets your client up for a win at summary judgment. Squandering a deposition risks sinking your case. Given the critical importance of depositions in civil litigation, lawyers should aim to schedule a deposition in a manner that maximizes efficiency and strategic advantage. Here are a few tips to help you make effective decisions about when, where, and how you schedule your next deposition.
Be Flexible by Default, Firm by Necessity
We’ve all been there. The court has entered a discovery order and you’re off to the races on interrogatories and document discovery. Ideally, you’d like to wait until you’ve received and digested responses before taking depos. But your opposing counsel comes back to you with proposed times, dates, or locations that are inconvenient or out of your preferred sequence. What to do?
As a default rule, showing some flexibility when it’s time to schedule a deposition will rarely hurt you, and it may well help your cause. The human beings who you’ve asked to depose have lives, families, and job responsibilities. They look forward to sitting for questioning about as much as they do to getting a root canal. Giving them some slack on the timing and logistics of their deposition — especially if they’re non-parties — can help mitigate their baseline irritation at having to spend time answering your questions. Plus, you’ll probably need the opposing counsel to show flexibility with your side’s witnesses, too.
But there are limits, and you must police them to protect your client’s interests. Hold firm on your scheduling demands if, for example:
- The timing of an important deposition depends on having already received certain discovery or examined a particular witness;
- You’ve accommodated multiple prior requests for flexibility with the same witness or a related witness;
- A witness or opposing counsel is plainly acting in bad faith;
- Accommodating a scheduling request risks violating a discovery order.
Remember, courts absolutely despise resolving discovery fights, especially ones concerning outwardly administrative issues like scheduling. You never want the court to see you as the lawyer who refused to accommodate a reasonable scheduling request. By making flexibility your default rule, you minimize the risk of escalating a dispute that will only draw a judge’s ire against you and your client. To that end, consider offering to take depositions remotely, with the help of a single-source deposition service provider, to enhance your scheduling flexibility.
Know Your Deposition’s Purpose — Learning vs. Teaching
Every deposition you take should have a clear purpose in advancing your case. The time, place, and manner of taking that deposition should serve that purpose whenever possible.
Many litigators find it helpful to sort depositions into two buckets — learning and teaching — in deciding how to schedule a deposition of witnesses. In a learning deposition, your primary purpose is to obtain new information that could shed light on material issues in your case. It seeks to uncover facts you didn’t know, illuminate connections between witnesses or events, and follow potentially relevant threats without knowing where they might lead. Learning depositions tend to be most useful at the beginning of discovery.
In a teaching deposition, by contrast, your purpose is to educate your opponent about the strengths of your case and the weaknesses of theirs. It involves asking questions to which you know answer and making a record supporting specific factual and legal arguments in your favor. Teaching depositions often serve as effective tools at the close of discovery, when you will usually depose your most important witnesses (see below).
Of course, your depositions won’t always divide neatly along these lines. It’s not unusual to learn and teach in the same deposition, such as when a witness gives you new information that you can exploit immediately to nail down a consequential fact or point of law. But thinking in terms of learning versus teaching can help you decide how to sequence your depositions in the most strategically advantageous manner.
Schedule “Big Cheese” Depositions Carefully
You usually only get one shot at the deposition of key party opponent witnesses — the Big Cheeses, so to speak, of your case. So it’s critical to schedule them to take maximum advantage. Most litigators tend to leave Big Cheese witnesses for the end of discovery, which is often a sound strategy. It gives you the full benefit of the insight obtained in prior depositions, document disclosures, and interrogatory responses. And that, in turn, frequently affords you the best chance of securing high value testimony that could affect the outcome of your case.
But there are always exceptions to the rule, and it’s a mistake to make a habit of ignoring them. Deposing the Big Cheese early in discovery might prove the better strategy if, for example, the case hangs on a narrow factual issue that only that witness can speak to, making it a potential waste of time and money to engage in voluminous discovery before hearing what that witness has to say. Scheduling a Big Cheese deposition to occur before other discovery can also secure critical admissions or force your opponent to take a legally consequential position on a key fact before discovery has educated them about your case and allowed them to develop a coherent response.
The point is, pay extra attention to Big Cheese deposition scheduling. Building up to the Big Cheese often works out well, but it’s not automatically the best strategy for your case.
Depose Experts on Your Terms
Expert depositions are a genre unto themselves. Deposing an expert requires thorough preparation, mastery of the relevant facts, and careful, precise questioning. The opposing party’s expert is the only witness who has been paid to attack your case, and your mission is to control and limit the scope of his or her opinion. The time, place, and manner of an expert deposition can be critically important in achieving those ends.
It’s common practice to delay disclosure of expert opinions and scheduling of expert depositions to the later stages of discovery. But within the parameters of the applicable rules and discovery scheduling order, you can and should control when and how to depose your opponent’s expert. Unlike a lay witness, an expert is a service provider who can reasonably be expected to accommodate your scheduling priorities. Insist on a setting and format that serves your ends.
Avoid Deposition-o-Ramas If Possible
In a large case with lots of witnesses, the parties will sometimes schedule multiple back-to-back depositions over the course of a day or two. In the pre-remote deposition era, these deposition-o-ramas had some practical appeal. By opting to depose multiple employees of a corporate party back-to-back, for example, lawyers could save on time and travel.
But what deposition-o-ramas achieve in raw scheduling efficiency, they often sacrifice in quality. Taking a deposition is exhausting, and lawyer performance tends to drop over the course of a day of back-to-back witness sessions. It also takes time to digest what you’ve learned in one deposition in order to put it to optimal use in another, which can be a challenge when there’s no time between witnesses to review draft transcripts.
Thanks to remote depositions, lawyers no longer need to rely on deposition-o-ramas, which are best avoided if you can help it. Attorneys now have the option to take testimony from the comfort and convenience of their own offices on a flexible schedule that leaves plenty of time to recharge and prepare for the next round. If, that is, they master the nuts-and-bolts of administering a remote deposition, which brings us to our last tip.
Leave the Nuts and Bolts to an All-in-One Deposition Service
Remote depositions hold the potential to be a scheduling game-changer because they give lawyers and witnesses maximum flexibility in choosing the time and place for taking testimony. But those benefits only pay dividends if you also have the tools to conduct a remote deposition effectively. Many litigators have found that all-in-one deposition services hold the key to making a remote deposition as good as, if not better, than a live one. By leaving the nuts-and-bolts of administering a deposition to a third party service provider, lawyers can give themselves the time and bandwidth to focus on obtaining evidence, exploiting exhibits, and getting the admissions they need to win their case.
Remote Legal is a single-source deposition service that offers purpose-built, deposition solutions like court reporter scheduling, exhibit pre-loading, seamless screen and document sharing, and ultra-fast draft transcript delivery. Contact us today for a demo.
See Remote Legal in Action
Let us show you our single source solution so you can get back to doing the things you love.