5.4 Purposes of Depositions

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

5.4 PURPOSES OF DEPOSITIONS

5.401 Assessment of Foundation, Credibility, Effectiveness, and Bias. One basic purpose of a deposition is to discover what the deponent knows or does not know and to ascertain the deponent's bias. With all deponents, lay or expert, the scope and depth of the witness's knowledge and the source of that knowledge should be explored. This includes limiting a witness to a specific factual scenario, pinpointing key assumptions made by the witness, and testing key assumptions.

With an expert, foundation issues are important and may provide a basis for limiting, discrediting, or disproving the opinion. Discovering the absence of knowledge can be as important as exploring the opinion itself. The examiner needs to learn what the expert reviewed and did not review, and the extent of the expert's general knowledge and experience. Learning the number of times other attorneys have retained the expert, the names of these cases, prior expert reports, and journal articles may also provide useful information before or after a deposition.⁵⁰ In medical malpractice cases, the deposition can be used to determine whether a proffered expert meets the statutory standards for qualification as a medical or standard of care expert.⁵¹

The deposition can also inadvertently provide another aspect of credibility evaluation. For example, the plaintiff in alleged chronic back pain who is unable to resume any normal activities following an accident but who can sit through three hours of a protracted deposition without moving or complaining has unintentionally given the opposition an important defensive tool.

5.402 Discovery of Information. Often, the overriding purpose of the deposition is to discover new information.⁵² Key questions should relate to the extent of the deponent's knowledge and the discovery or identification of documents, witnesses, facts, and party admissions.

5.403 Impeachment. A corollary purpose of a deposition is to develop a basis to impeach the witness. Using questions that counsel intends to replay at trial provides the foundation to attack a witness's credibility by using deposition testimony.

5.404 Support for Motions. Deposition transcripts provide support for motions for summary judgment, motions in limine, and evidentiary rulings.⁵³

5.405 Support for Requests for Admissions. Using the tools provided by Rule 4:11 of the Rules of the Virginia Supreme Court, a party may be asked to admit facts to which that party testified at deposition.⁵⁴

5.406 Settlement. Depositions can be grueling affairs. Presented with both the strengths and weaknesses of the case, a party may find settlement a much more appealing option following a deposition. Psychologically, a deposition may also provide the first opportunity to tell the other side his or her version of the events and, in doing so, reach a degree of closure. Sometimes the strategy for the deposition will depend upon whether...