It's been said that informal discovery has become a dying art. If it's true, it means that many witnesses are being deposed who probably don't need to be. Ask these questions before filing a deposition notice:
- Is the witness friendly to your side? If so, and if the witness is available for trial, there's often no reason to give the other side a preview of the testimony. Find out what you need to know through informal means of discovery--a phone call or a meeting at Steak 'n' Shake.
- Even if the witness is not a "friend," have you tried informal discovery anyway? If there aren't any ethical barriers to talking to the witness directly, try to arrange a meeting. If you're worried that the witness might change his story and needs to be pinned down, think first about witness statements rather than depositions.
- Is the deposition worth the expense? One of the advantages of informal discovery is that it saves money. Of course, it may also mean that you're faced at trial with cross-examining a witness you've never deposed. But if the criminal lawyers can learn to do it--not to mention the "old-timers"--so can you.
- Do you really want to preserve the testimony in a deposition? As James W. Jeans points out in his book Trial Advocacy, "[T]he information you receive might hurt more than it helps. Furthermore it is preserved, to be available at trial even if the witness dies, is transferred to Perth, Australia, committed to an institution or otherwise 'unavailable.' And, one more demerit, you might legitimate evidence that would not have been received at trial. Deposition taking will waive certain witness incapacities and certain lines of inquiry will waive privileged testimony."
These are all good reasons to think twice before filing a deposition notice.