| For instance there is no reason to take a hostile witness' deposition and then waste your best cross-examination during the deposition on the belief that you will surprise them -- there are rarely Perry Mason moments ever, let alone during depositions, and wasting your best shots at a deposition merely gives them pre-trial training on fending off cross-examination during trial. Better to merely ask such a witness what they have to say about the other side's case -- giving them the opportunity to exhaust their memory. Now you can go back and prepare to tear this story apart at trial.
I once deposed two key employees of an opponent in a substantial seven-figure case for a combined two-and-a-half hours where all I asked about was their side of the story. I then drilled them each on cross-exam at trial to achieve a successful verdict for my clients. I didn't invent this approach; it is what the best litigators do for all depositions other than those where a witness may be unavailable at trial and you obtain their testimony for presentation at trial.
Rule of thumb: In-house counsel must become actively involved in what is going to be asked of each deponent -- if possible on a question by question document-by-document basis -- in order to reach a conclusion as to why and whether the deposition need be taken.
Stewart M. Weltman, a member of The Corporate Counselor's Board of Editors, is the principal in the Chicago-based Weltman Law Firm. He can be reached 312-606-8756 or sweltman@weltmanlawfirm.com.
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