The testimony given at a deposition vs. testimony during a trial have a lot in common. They’re both sworn under oath, under penalty of perjury, and part of official court records.
There’s a longer list, however, of how they differ—and understanding their unique nature and structure is critical not just to your case development but to effectively preparing your witnesses for trial and deposition testimony.
Delineating Depositions and Trial Testimonies
The two types of testimony aren’t mirror images of each other, nor is the deposition process a dress rehearsal for opening night in a courtroom.
Testimony at a deposition vs. testimony at trial play different roles in the success of a legal case—and the former often negates the need for the latter, with the vast majority of civil cases ending in settlement prior to trial.1
Depositions: An Overview
Depositions often take center stage during the discovery process, allowing each side to question potential witnesses in depth. They’re important avenues of investigation, particularly when it comes to sussing out how strong the opposing lawyer’s case could be at trial. They include:
- Direct and re-direct questions
- Cross-examination and re-cross
- More latitude for questioning than at trial
- Less use of objections against the content or construction of questions
Within the limits of time and budget, depositions allow significant opportunity to uncover facts, opinions, biases, and the strengths and weaknesses of key individuals—which means opposing counsel can discover the same about your arguments and key witnesses.
Trial Testimonies: An Overview
Testimony during a trial should be a known quantity, not a surprise unveiling of new information. If each side has completed effective depositions, testimony at trial is typically much shorter and limited to questions (with anticipated answers) that support a refined argument.
There is also much less latitude for which questions are allowed and how they’re framed than during deposition testimony.
Preparing Witnesses for Depositions vs. Trial Testimonies
Bringing a legal case to a successful conclusion often means investing hours in witness preparation. Simply admonishing them to show up on time and be truthful isn’t enough to avoid traps set by the opposing counsel.
Some preparation is applicable to all witness testimony, whether at a discovery deposition or trial:
- Listen to the whole question and make sure you understand it before responding
- Remain calm, patient, and cordial
- Dress comfortably and as close to conservative business wear as possible
Witness Prep for Depositions
When it comes to depositions, be sure your witnesses understand the stakes during the discovery process. During your witness preparation, inform them about:
- Providing concise answers and not expanding past the actual deposition questions
- Answering “it depends” or “I don’t know” rather than speculating
- Their right to review any documents or evidence thoroughly prior to responding
- Retaining their right to review and sign off on transcripts2
Witness Prep for Testimony at Trial
In addition to sticking with the truth and not contradicting their prior testimony, there are some different tips to help your witnesses prepare for a trial. Talk to them about:
- Reviewing their prior testimony to ensure it’s consistent with what they say at trial
- Reading through files or documents they can expect to be questioned on
- Providing complete answers when a yes/no question requires clarification
Working with a trusted trial services partner can set you up for success, helping you with all components of your trial preparation. This includes support with witness preparation tactics, jury research and consulting, effective trial presentation techniques, demonstratives, legal graphics, and more.
The Intersection of Depositions, Trial Testimonies, and Case Outcomes
Even if you anticipate a settlement, you’ll need to prepare for the possibility of a judge-and-jury decision during the discovery phase. For cases that extend to a courtroom trial, both the deposition and trial testimonies are critical.
Analyzing Depositions for Case Strategy
Deposition testimony can help you determine what to exclude as well as what to include in a final argument or during a settlement negotiation. Once they’re held and you have a chance to read through transcripts and notes:
- You’ll have a sneak peek at what opposing witnesses would likely say during trial court proceedings
- Testimonies will be locked in under penalty of perjury upon impeachment
Utilizing technical tools like AI for legal discovery can help you in the process of deposition analysis, as well.
The Role of Testimonies in Persuading the Court
Courtroom testimony must be truthful and factual. Trial testimony persuades juries and judges based on:
- Individual witness believability—their perceived character, status, and truthfulness
- Emotional impact that connects without making viewers uncomfortable
- Expert witnesses who can communicate effectively with laypersons
Sources:
- The Law Dictionary. What Percentage of Lawsuits Settle Before Trial? What Are Some Statistics on Personal Injury Settlements? https://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/
- Primerus. Deposition And Trial Testimony: A Survival Guide For Your Clients. https://www.primerus.com/article/deposition-and-trial-testimony-survival-guide-your-clients
