Persuasion and Deposition Testimony

Depositions are an integral part of discovery, and many lawyers use deposition testimony to support or defend dispositive and other motions. Often, lawyers will summarize deposition testimony:

The defendant stymied the discovery process by refusing to answer even the most basic questions at his deposition, acting in a combative manner, and refusing to cooperate.

 

October 30, 2013 Deposition of Kenneth Ray 4:15-25; 5:6-25; 6:1-25; 7:1-16.

This tactic is ok—it gets the point across. But including the exact testimony itself can be much more effective, especially if the testimony is unequivocal:

The defendant stymied the discovery process by refusing the answer even the most basic questions at his deposition, acting in a combative manner, and refusing to cooperate:

Q:    What is your address.

A:    I don’t see what that has to do with anything. You don’t need to know my address. It’s none of your business.

Q:    Mr. Ray, I’m entitled to ask these questions as part of the discovery process.

A:     Well I’m not answering it.

Q:    Ok. Where are you currently employed.

A:    That is irrelevant too. You don’t need to know that.

Q:   This is part of the discovery process, Mr. Ray. I can ask questions to obtain discoverable information. My client is seeking a judgment against you, and I’m entitled to know if you’re employed and where.

A:    You’re not getting that information from me. Next question.

*******

Q:    Are you going to answer any of my questions.

A:    Maybe. It depends on what you ask.

Q:    Ok. We’re here to talk about an accident that occurred on June 24, 2012 between you and my client. Where were you going at the time of the accident.

A:     That has nothing to do with anything.

Q:     Are you declining to answer the question.

A:     Yes.

 

                                     *******

October 30, 2013 Deposition of Kenneth Ray 4:13-25; 5:6-14.

As you can see, the second example is exponentially more persuasive. The reader can see exactly how difficult the deponent was during his deposition. It’s one thing to say the deponent refused to answer basic questions, but another for the reader to “hear” the deponent refuse to provide even his address or employer’s name.  

And in many cases, courts want to see the exact testimony anyway. It’s not that they don’t trust the lawyers’ summary. It’s just that they want to confirm that the lawyer hasn’t taken too many liberties and attempted to extend the testimony to say something the deponent didn’t actually say.    

Next time you cite deposition testimony in support of or opposition to a motion, consider including the exact testimony to add persuasiveness.