Leading up to a trial, there are these things called depositions. Perhaps you’ve heard of them. Perhaps you’ve seen a clip of Trump as the subject of one lately.
What are they? They are recordings of a series of questions and answers between the lawyer asking the questions, and the witness, or party to a lawsuit, providing the answers. They happen before the trial. Usually they are video recorded.
If you are being “deposed”, then you are the “deponent”—this word having Latin roots meaning “to put down” on paper—and your words are being memorialized, sworn to under oath.
It appears the act of deposing someone goes as far back as the 15th century, and “officers” of the court would take a person’s statement and write down a summary for the court’s benefit. No one, especially not the lawyers (if there were even any available), would participate.
Today you will not find a deposition without at least two attorneys in the room. Over the centuries, depositions grew into the verbatim question and answer video recordings that they are today, often lasting all day, if not longer, with lawyers ever-present.
OK: Isn’t a recorded question and answer dialogue between a lawyer and a witness the same thing as testimony in court? Why yes, yes it is.
Why do we have depositions? You might think that because I am a lawyer that I can quickly and wholly justify the use of depositions, but I assure you, I am coming to this from a place of ignorance, as I do a lot of things, and you are coming along with me.
My first question would be, why do I need to record what someone will say at a trial? Isn’t that what the trial is for? I think a lawyer who likes doing extra work would argue that by having depositions, we can save time and money. We save time and money, the argument goes, because by conducting a deposition before the trial, we learn what a person will say at trial, so we have an idea where this case will end up. And then from there we can convince ourselves that the only variable remaining during the trial will be convincing the judge or jury to hate us slightly less than the other side.
A better argument for allowing depositions is that there might be an elderly witness, or a witness in failing health, or both, and she might not live long enough to see the trial. We need to get her testimony recorded in case she dies and never gets a chance to testify in court. Her recorded testimony might be crucial to the outcome of the case, and by preserving it, there’s a chance we can play it for the jury at the trial.
To me, this is the best cost-efficiency argument for allowing depositions, as I can assure you, just going straight to trial will be a lot cheaper for a client than conducting 20 all-day depositions before the trial itself.
One or two of those depositions might divulge a piece of information before trial that entices a settlement, saving a client from getting punted by a jury. See: Tucker Carlson’s text messages about the January 6 insurrection on the eve of the trial between Fox News and Dominion Voting Systems—Fox News settled for the tidy sum of $787.5 million, rather than proceed to trial and allow a jury to read those messages.
Still, though, ordinary or specific disclosures (read: give me all your text messages) are probably what divulged that Tucker message in particular, though I don’t know that for sure. And even so, a client can settle mid-trial before the jury has a chance to render a verdict, if the trial isn’t going well.
The data that might show whether it is better to conduct numerous depositions or, surprises be damned, simply go straight to trial without them, will forever be hard to come by, if at all. You will never be able to split-test a real trial, i.e., try the trial twice to a jury verdict, with depositions and without (to say nothing of the nuances of each and every trial). No two trials are ever the same, even if it’s the “same” dispute being litigated all over again.
So what is the real reason we lawyers like depositions? We like them because they let us see the future. A deposition, at its core, is a pretrial tool that allows a lawyer to get down on paper what a relevant witness has to say about the case, ahead of the trial. It allows the lawyer to pin the witness down, marry them to their words, so they can’t later try to squirm out of what they said (though they will often do that anyway). Further, maybe something that witness says during their deposition will open up a new avenue of questions, a new line of inquiry, a hole to rabbit down that might divulge other relevant matters.
Lawyers hate surprises. You may have heard the lawyer adage of “don’t ever ask a question to which you don’t already know the answer.” Well, this is bullshit. We ask hundreds of those very questions—we just do them before trial. And that’s probably why depositions have stuck around, damn the pretrial cost, so that at trial we appear all-knowing and omniscient, minimizing surprises.
In other words, because my client is paying me a lot of money, if you, witness, are going to screw me at trial with your testimony, I want to know now. I want to know before we go to court. A deposition is a tool for anal-retentive lawyers, which is to say most of us, to have the ability to know the “future” and eliminate as many variables as possible. I’d rather air out your dirty laundry now, just you and me, before it’s you, me, and the jury.
Comments