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Before the Jury Hears a Word: Strategic Depositions

Depositions are where complex civil cases are won or lost. Long before a jury ever hears a word of testimony, depositions can shape the trajectory of an entire case.

Mastering depositions means knowing how to lock witnesses into specific responses, prepare clients to withstand aggressive questioning, and expose weaknesses in the opposing side's expert testimony.

Every deposition serves a distinct strategic purpose, and your preparation should reflect that. When preparing for a deposition, it’s critical to understand the different elements you're trying to prove in your case. The information you need from a corporate representative differs from what you need from a fact witness or a treating physician. Before you walk into any deposition, define your objectives:

What elements of your case does this witness speak to?
What admissions, if obtained, would significantly advance your position at trial?
What harmful testimony might they give, and how do you contain it?

The Art of Locking in Testimony

Depositions are opportunities to freeze the narrative. What a witness says on the record cannot be easily walked back, which is why depositions can be fatal to either side’s claims if a witness says something that contradicts a prior statement by an expert or corporate representative, for instance.

The most valuable technique in any deposition is controlling the arc of questioning to move a witness from broad acknowledgments to narrow, specific commitments.

Anticipate the defense expert's positions. Before deposing any defense expert, understand their anticipated opinions thoroughly. Use the deposition to lock them into those specific positions.

Watch your cadence and demeanor. The deposition record may be played for the jury at trial. How you conduct yourself matters as much as what you elicit. Stay measured, methodical, and professional. Let the record speak for itself.

Preparing Clients for Depositions

Defense counsel will use the same locking techniques against your client that you're deploying against their witnesses. The goal is not just to gather information; it's to find inconsistencies and elicit admissions. Your client needs to know the ways their responses could be used against them.

Explain the legal and factual issues of the case
Determine any prior and future treatments
Ensure the client understands the kinds of questions they will be asked

Depositions can often feel like a normal conversation to clients because the attorney will ask them simple questions to make them comfortable, like their name, marital status, whether they have children. Instill a simple set of rules for answering:

Don't guess. If you don't know, say you don't know.
Always be truthful: everything you say is under oath and documented.
If you don't understand a question, ask for clarification before answering.
Only testify to what you have direct, personal knowledge of.
When you’re uncertain, use: "To the best of my recollection” OR “as far as I can recall”

Perhaps most importantly, address any difficult facts with your client that might surface during the deposition. It is far better to disclose those facts in advance and address them proactively than to have your client appear evasive or dishonest on the record.

Preparing Your Experts for Depositions

When using treating physicians as experts, they likely aren’t physicians who go to trial every day. They are normal doctors who have come into contact with our client, who unfortunately suffered an injury giving rise to a legal claim.

Ensure the physician understands the issues in the case and is prepared with all the medical records to answer the defense’s line of questioning.
Defense counsel will probe for gaps, inconsistencies, and areas where the physician's recollection might diverge from the documented record. Go through the records with them.

For retained experts, the preparation goes deeper. The defense will target the specific opinion your expert has rendered. Make sure your expert:

Understands the defense's position and anticipated counterarguments
Can explain the factual and methodological basis for their opinion clearly and without ambiguity
Is prepared for questions about how and when they received case materials

Challenging the Credibility of Opposing Experts

Expert discovery allows you to understand the opinions of the defense experts, the information they relied upon to formulate their opinions, and when their opinions were finalized.

Depositions can be used to pin down an expert’s area of expertise, anticipated opinions at trial, and whether any of those opinions should be stricken because they don't comply with the evidence code.

This stage of discovery gives you powerful tools to attack the reliability of opposing experts. Focus your investigation on three questions:

What information did the expert have when they formed their opinion? If an expert formulates an opinion without having access to case materials that are particularly at issue in the case, that’s one angle to attack the expert’s credibility- not their professionalism or intelligence, but the who, what, when, and how they formulated their opinion.

When did they receive that information? If the defense disclosed an expert's opinions before the expert had even reviewed the file materials, that's a significant red flag. It raises an obvious question: how were the opinions formed without the underlying evidence? Use the deposition to establish the timeline precisely.

Who provided the information — and what was the relationship? An expert who has been retained dozens of times by the same defense firm and has been paid hundreds of thousands of dollars over the years is a different witness than an independent specialist. When all of the plaintiff's treating physicians reach one conclusion and the defense's hired specialist reaches the opposite one, the jury will draw their own conclusions about whose opinion is more trustworthy.