Depositions, Litigators

Remember At A Deposition You Are Building A Transcript

You may have a lot of goals for a deposition, but one should be ensuring that at the end of the day you have a transcript that you can actually use to win your case.

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You may have a lot of goals for a deposition, but one should be ensuring that at the end of the day you have a transcript that you can actually use to win your case.

They don’t teach us much about actually being a litigator in law school. That is not news. But if there is something I think rarely gets taught well at all, it’s how to take or defend depositions (though, with some effort, you can find some of the better training opportunities out there).

I am obviously not going to try to teach the art of taking or defending a deposition in a 750-word piece. I will try to spend time on different aspects of taking or defending depositions and other hard-core tools of litigators in the coming months. Today, I want to focus on one thing that I think even experienced litigators forget, and something we always try to remember at our firm: whatever else you have at the end of a deposition, you have a transcript. You better make sure you have done all you can to ensure that it is the best transcript you could have.

There are many legitimate goals in taking a deposition. You want to lock a witness into her story, whatever that story is. You want to authenticate documents to ensure no one complains later about that. You may even use depositions for their stated (albeit limited) purpose: discovering information relevant to the claims or defenses in your civil action (or, if you have the rare example where you can take a deposition as a government lawyer, as I did when I conducted investigations as an assistant attorney general, in your criminal or regulatory action).

There are likewise many legitimate goals in defending a deposition. You can help the witness you are defending get used to the process. The witness potentially gets the chance to feel out the adverse counsel. If you pay attention and your adversary is not careful, he may reveal theories of the case you had not previously known to focus on.

But whether you are taking a deposition or defending one, you should be mindful of what the deposition transcript looks like when it’s done. Take steps, including during the deposition, to ensure you have a good transcript, the best you can have.

What do I mean by a “good transcript”? I mean one you can use —whether in a summary judgment motion or other filing, or at trial or another evidentiary hearing. It does not matter if you, the lawyer, learned something in the deposition if that is not clear from the transcript. It does not matter if you know that the deponent essentially lied if that lie is not clear in the transcript. I don’t generally quote mobsters, but as a famous one supposedly said, “If no one sees it, it didn’t happen.”

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If a fact or point that you learned in the deposition is not clearly stated in your transcript, it is like it did not happen. You do not want to be in the position of piecing together multiple pages scattered throughout a transcript that you attach to a motion for summary judgment. Make it easy for the court by being mindful of the transcript, so that a question and answer, or a few simple questions and answers in a row, can be attached to your motion papers to make your point. Remember that the judge or her clerk was not sitting in the room, for hours, like you, with the benefit of body language and the off the record comments. The court or clerk has only those transcript pages to rely on.

Having a clean and easy-to-use transcript is even more important when using deposition transcripts at trial, whether read in as evidence, or, again, even more importantly, when used to cross-examine someone. You have a jury’s attention for only so long. When you stand up and want to show that a witness told a different story in the deposition than he or she is telling in court, you simply are not going to be successful if you have to read 10 different pages of the transcript. You want to be able to say, “Do you remember being asked this question and giving this answer,” read the question (or two) and answer (or two), and undermine what the witness you are crossing just said. Without the right transcript, however much you may know the person on the stand is lying, you will not be able to show that to a jury.

No matter what else you get out of a deposition, you will get a transcript. Make it one that helps you win your case.

John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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