The ABA Litigation Section’s Litigation Update includes an article by Steven Lubet, “Showing Your Hand: A Counter-intuitive Strategy for Deposition Defense” (previously published in 29 Litigation 2 (Winter 2003)). He challenges the familiar approach of making every effort to limit the information given to your opponent. Since most cases settle, your deposition strategy should focus on negotiation theory.
Lubet writes (excerpt):
Although no competent lawyer could neglect trial preparation—if only because better preparation leads to stronger negotiating positions—it is surely the case that depositions are most likely to be used as negotiating tools rather than trial bombshells.
Negotiation theory posits that the strength of one’s position is a (or perhaps the) major determinant of the outcome. The acronym for this concept is BATNA: best alternative to a negotiated agreement. Roger Fisher et al., Getting to Yes, at 97 (Second Edition, 1991). The better your perceived BATNA, the better your negotiated result. Of course, the opposing party cannot be intimidated by your BATNA unless they know about it. Thus, a good deal of any negotiation must be devoted to a detailed description of your powerful case (without details, it would just be unpersuasive bragging). And what is it that makes your case so compelling? One factor would certainly have to be the strength of your witnesses and the quality of their expected testimony, leading to the likelihood that you will prevail at trial. What better way to educate the opposition than by showcasing your witnesses at their own depositions? Don’t prepare your witnesses to give short, unrevealing answers; encourage them to tell what they know, explaining why you represent the winning side. Concealing information (okay, protecting information) is less valuable than most lawyers believe. Moreover, it is often advantageous to inform the opposition about the evidentiary strengths of your case.
But, you may ask, “What about the smoking gun I’m trying to hide?” Very few cases turn on a single fact or set of facts. And absolutely critical information is usually so important that both sides have sufficient incentive to ferret it out, notwithstanding evasive tactics in deposition defense. Thus, the likelihood of effectively hiding bad facts may well be outweighed by the disadvantage of turning your own witness into a recalcitrant clam.