Over the last few years I have come across three different lists of the purposes for taking a discovery deposition and here combine them into one. Considering each of these may help you plan your deposition outline.
1 - Get information. The deposition is your opportunity to ask open-ended questions to figure out what happened and what evidence exists that supports your side, or theirs. Remember that establishing a rapport will relax the deponent and open him/her up. Embarrassing the deponent with insensitive questions that, for example, belittle the deponent’s education or experience will close the deponent up and frustrate your primary goal.
2 - Lock in the story. Before trial you want to know your opponent’s version of events. The deposition is your chance to lock that story in so that you can plan your trial strategy.
3 - Get Impeachment Ammo/Get Admissions. During depositions the opposing party or its agent(s) will say things that will be useful to you at trial. When it happens, make sure the question you asked is useful to you. If the question is compound, or vague, it won’t be effective impeachment. One expert recommended asking the important question three times, fine-tuning its focus until you have the exact question – and answer – that will be useful to you at trial.
4 - Impress decision maker with the seriousness of the case. The party, or corporate decision maker, might not be taking the case as seriously as needed to resolve it. This is your opportunity to show that you take the case seriously and are prepared and determined to get to the truth. Memorize the facts and dates and use them in your questions so the deponent sees how serious and important the case is to you and your client.
5 - Size up the deponent as a witness. Is the deponent articulate and clear on the facts? A bumbling mumbler? Arrogant and easily trapped into admissions?
And as explained by a litigation warrior of vast experience:
6 - Show the deponent what it will be like on the stand: After you have played nice and extracted every useful fact and admission, go after the deponent to give him/her a taste of what it will be like to be cross examined in court. If the experience is unpleasant enough, a reasonable settlement offer may be coming your way.
Submitted by Brian D. Moore, Class of ’92.