The Case for In-Person Depositions

Skipping in person depositions to save money is short-sighted.  There is always a cost pressure to skip depositions entirely, or take them on the phone, however automatically defaulting to the lower cost method of getting the testimony is ill advised.  The importance of each witness, the anticipated testimony, the amount in dispute, and a variety of other factors should be considered.

One factor that should also be considered is the witness’s presentation.  For trial purposes, what a witness says can sometimes be secondary to how the witness says it.  I cannot count the number of people who have told me under oath that whatever gave rise to the litigation has ruined their life or had some other disastrous effect on their life.  However, only a few have given that testimony in a way that is believable or particularly persuasive.

As an example, years ago I represented a store in a product claim.  I video recorded the plaintiff’s deposition.  She was in her early 50s.  For the deposition she wore a black cocktail dress and 5‑inch spike platform heels.  She had a fresh, spray-on tan with stylized hair and make-up.  I knew the tan was new because I could smell it.  She wore a large diamond CZ wedding ring on her ring finger.  I noticed all of these things because 1) the deposition was in person; and 2) I was looking for this information because how a person dresses for and presents in a given situation can be very telling.

Plaintiff’s appearance did not match her testimony.  She discussed in detail the extreme poverty she and her husband endured before and after the incident.  She claimed to be living on nothing but Social Security benefits after it.  She then discussed how her husband’s terminal liver failure from alcoholism had financially ruined their lives and that she left her last job because it did not pay enough to cover his in-home nursing care.  She instead stayed home to nurse him.

Would she present like this at trial?  Who knows, maybe her attorney would have reigned her in.  For settlement purposes, the inconsistency between her appearance and her testimony weighed against her.  If the deposition had been taken telephonically, none of this information would have been gathered.  The same analysis applies to all types of witnesses, even experts.