Step six in how to win a lawsuit: Depositions

A deposition is when all attorneys require an opposing party or a witness to answer questions under oath in the presence of a court reporter. It is a very formal proceeding, much like testimony in open court, except there is no judge or jury present. Attorneys use this process in order to require witnesses with critical information to commit themselves under oath before trial. This gives both sides an opportunity to plan their responses to the witnesses’ testimony and to avoid surprises at trial. This process is extremely effective in gathering evidence, but it is also very inefficient. In truth, a typical witness with relevant information that could be discovered in a 15-minute phone conversation may be subjected to 4 or 5 hours of intense questioning at a deposition. Because it is so inefficient, it is also extremely expensive. Clients must pay their lawyers to prepare for the deposition; then they must pay them to spend a day at the deposition; then they pay for the court reporter to attend the deposition and type up a lengthy transcript of the proceedings; and then they pay for the lawyers to read and analyze the transcript. It can cost anywhere from $2,000 to $10,000 for a single deposition. Really this is a hugely wasteful endeavor, but it is also an essential one under the rules of discovery in the United States.

There is no real solution to this problem. It helps if as many depositions as possible are taken on the same day or on successive days because this reduces preparation time. In addition, even lawyers being paid by the hour eventually get tired of asking questions; often the last witnesses in a group of depositions are the shortest because the lawyers have tired themselves out by then. It also helps if the lawyers have a frank discussion with one another about their cases and jointly agree to limit the number of depositions that are actually essential. Clear-thinking lawyers can often stipulate to uncontested facts and thereby reduce the number of depositions that are really needed.

Join me next week for Step seven in how to win a lawsuit: Demands for documents