When you are mired in an opposing party’s document requests and fighting to limit your company’s disclosures as much as possible, it is important not to overlook the opportunities your company has to collect information during the discovery process. In fact, when used effectively, discovery can be used not only as a tool for gathering evidence, but also for advancing your litigation strategy as you progress toward settlement negotiations or trial.
Strategic Uses of Depositions in Business Litigation
1. Exposing Your Counterparty’s Weaknesses
While there is always a question of just how much you should show your hand to your opposition, under the right circumstances, a deposition of a counterparty’s president, records custodian or other key witness can be an opportunity to expose weaknesses in your opposition’s case. Even if the opposition already knows its weaknesses, showing that you know them too through strategic deposition questioning can provide strong leverage when it comes time to negotiate a settlement.
2. Ammunition for Witness Impeachment
If your case is headed for trial, you will want every possible opportunity to discredit the opposing party’s key witnesses. When it comes down to weighing the evidence, the less weight the judge or jury affords to your counterparty’s witnesses’ testimony, the better your chances of securing a favorable verdict. Soliciting deposition answers that you can later use to challenge testimony on the stand is one of the most effective ways to impeach a witness’s credibility in court.
Effective Questions in Civil Depositions
With these considerations in mind, there are a number of specific types of questions that will frequently prove effective in doing more than simply soliciting answers that, at best, repeat what you will find in your opposition’s interrogatory answers and document production. While each case is unique, deposition questions that can help advance your litigation strategy include:
- “What did you do to prepare for this deposition?” Witnesses tend to prepare the most for the question they think will be the most difficult or the most important. As a result, the answer to this question will often expose more than the witness realizes.
- “Have you ever been deposed or testified in court?” Finding out what else the witness has said in the past can provide even more ammunition for challenging inconsistent testimony at trial.
- “Has anyone else been present in any of your discussions with legal counsel?” If a third-party was present for any of these discussions, the witness’s attorney-client privilege may be compromised—entitling you to seek additional information through the discovery process.
Of course, this is just a tiny sampling. Nailing down on substantive issues, gathering information about key employees’ roles within the organization, focusing on known weaknesses in your opposing party’s case and other targeted lines of questioning can all help advance your litigation strategy as well. To get the most out of your company’s depositions, you will need to put in the time to think about your true goals in examining each individual witness now and at trial.
Michael L. Feinstein, P.A. | Business Litigation Attorneys in Fort Lauderdale, FL
Michael L. Feinstein, P.A. is a Fort Lauderdale, FL civil litigation firm that represents business clients in state and federal court. If your company is facing a dispute and you would like to speak with an attorney, call (954) 767-9662 or get in touch with us online today.