To Depose or Not to Depose: The Advantages and Disadvantages of Taking an Oral Deposition

Unlike some forms of discovery that are sent out as a matter of course, deciding whether or not to take an oral deposition requires some thought and consideration of the pros and cons.

When deciding whether or not to depose, focus on the goals of the deposition, consider the methods for best achieving those goals, and try to anticipate the hurdles that may stand in the way.

Here’s a run-down on the advantages and disadvantages of taking an oral deposition.

Advantages of taking an oral deposition:

  • Obtain evidence from nonparties. A deposition is the only discovery method that permits you to obtain testimony, documents, electronically stored information, and other evidence from nonparties. See CCP §§2020.010-2020.510.
  • Lock in testimony. A deposition is usually the best way to lock in the testimony of unfriendly witnesses and opposing parties.
  • Make personal observations. You have an opportunity to personally observe the deponent in an examination setting and assess his or her potential effect on the trier of fact if the case goes to trial.
  • Obtain spontaneous responses. You can elicit more spontaneous and complete answers to your questions than with interrogatories because the witness’ responses are less likely to have been rehearsed with opposing counsel; and if the witness tries to evade a question or not answer it completely, you can immediately follow it with narrower, more precise questions until you are satisfied with the response.
  • No numerical limit to questions. Unlike the numerical limits on interrogatories and requests for admission, there are no limits on the number of questions you may ask during a deposition.
  • Defendant may obtain early discovery. If you represent the defendant, you can notice a deposition as soon as your client is served with the complaint or appears in the action, whichever occurs first. CCP §2025.210(a).
  • May promote settlement. If you want to settle the case and are deposing someone with settlement authority, carefully worded questions supported by documents demonstrating the strength of your case may affect the other party’s confidence in its claims or defenses and help lessen a party’s resolve to bring the matter to trial.

Disadvantages to taking an oral deposition:

  • Expense. Preparing for and taking depositions may be more expensive than other forms of discovery, e.g., there are reporter fees and videographer fees. There are also attorney fees for time spent reviewing the file, preparing exhibits, researching legal issues, reviewing prior transcripts, preparing questions, and traveling to and taking the deposition.
  • Inefficient if you are unprepared. If you’re unprepared, you’ll waste time sorting through facts and documents for the first time during the deposition. Consider demanding documents and interrogatory responses to detailed factual questions before taking the deposition.
  • Reveals information to opponent. You lose the advantage of surprising the opposing party and opposing counsel at trial by revealing your probable areas of examination at trial and interrogation methods, and by stimulating opposing counsel to prepare for trial more carefully, e.g., your questions may reveal previously unknown facts and issues to opposing counsel.
  • Educates witnesses. You run the risk that witnesses who make poor showings at a deposition will learn by their mistakes and be coached to become stronger witnesses at trial. There is also the risk that the witness will disclose grounds for impeachment or weakness in testimony that the opposing party can use at trial.

For help in making the decision whether to depose or not, and everything you need to know about taking and defending oral depositions, turn to CEB’s California Civil Discovery Practice, chap 6. CEB also has you covered with its step-by-step Action Guides, Creating Your Discovery Plan and Handling Depositions.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

17 Responses

  1. Your article suggests that the decision to take an oral deposition really turns on your negotiating strategy. For instance, if you determine that your key wants, needs, walk points, and “BATNAs” (best alternatives to a negotiated agreement) will be best served by promoting settlement or obtaining early discovery, then you probably pursue this tactic, correct?

    • Although a deposition can serve to promote settlement or obtain early discovery, there are other reasons to use an oral depo. As the blog post lists, you can lock in particular testimony to use at trial and maybe get responses that are not available through other discovery means.

  2. Julie,

    Thanks for the helpful summary on depos. I will forward this to our Executive Director for additional input from members of the Maine bar. One other advantage I would suggest is “winning the case”. In teaching about taking depositions, I stress that the lawyer has to identify ahead of time the words he wants to come out of the deponent’s mouth that will win the case, and then figure out a way to get the deponent to say those words.

    Bill

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  8. Nice article but not sure why you only suggest under advantages that a defendant can get some early discovery and the timeline for the defendant. Don’t you think it is also important and could be an advantage for the plaintiff to take a deposition and to note that they can do it early. The advantage being that the plaintiff locks in the defendant’s version early on. Also written discovery should in most cases be served as soon as allowed under the CCP and before the taking of the Defendant’s deposition and certainly before the defendant takes the plaintiff’s deposition. By only referencing the defendant in the post I feel there is a slight bias towards defendants.

    • Thanks for your comment and adding these important points. I did not intend to indicate any bias toward defendants. I try to give specific tips to both plaintiff’s counsel and defense counsel and missed it this time, but I am glad you caught it and filled it in!

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  12. […] matter. But if you believe that the witness’s testimony should be preserved for the hearing, consider taking the witness’s deposition or formalizing the statement in the form of a declaration, especially if the statement may assist […]

  13. […] To Depose or Not to Depose: The Advantages and Disadvantages of Taking an Oral Deposition […]

  14. […] To Depose or Not to Depose: The Advantages and Disadvantages of Taking an Oral Deposition […]

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