While you'll often want to forget about a deposition as soon as it's concluded, the better practice is to use your recent gearing-up for the deposition as a springboard for some trial preparation. Consider taking the following steps:
- In a memo to the file, assess the witness's performance with an eye to how that witness might perform at trial. These notes go into your trial notebook. As explained here, you should start a trial notebook early in the case, not only to make your pre-trial discovery work more efficient but to keep you motivated for trial. For two methods of organizing a trial notebook, see "A Method of Organizing a Trial Notebook" and "Trial Notebooks: An Alternative Method."
- Think about how the witness's testimony can be used to establish the items you need to prove at trial. As noted here, in thinking about proof, remember to consult the jurisdiction-approved jury instructions for the claims at issue in the case.
- Turn your deposition outline into a witness outline for trial. The new outline also goes into your trial notebook.
- Think about whether the deposition raised any disputed evidentiary points or evidentiary theories that you will want to keep from the jury. Update your draft motion in limine as explained in "Tip for Motions in Limine: Keep a Running List and Update It During Depositions."
- Copy the exhibits you used at the deposition and note your impressions as to how they helped or hurt your case. The exhibits and notes go into your trial notebook or some alternative pre-trial storage area for possible trial exhibits.
- If you like to take notes for opening and closing as pre-trial discovery progresses, make any new notes suggested by the deposition and put them in your trial notebook.
- Create a deposition summary as soon as you get the transcript back, perhaps using the method described in this post: "Organize Your Deposition Abstracts by Issue, Not by Page Number." Add citations to the witness's trial outline as appropriate.
Various factors endemic to modern litigation encourage us to think of depositions as one-time, isolated events: the fact that lower-level associates often take depositions but don't try the case; the long period of time from deposition to trial; the fact that most cases settle. But depositions aren't one-time, isolated events. They are an integral part of trial preparation and should be designed as part of an all-encompassing trial plan. While all of the tasks listed above can be performed just before trial, it is usually much more efficient and effective to do them while the deposition is still fresh in your mind.