Lawyer’s Guide: Deposition vs. Trial Testimony

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 

U.S. Legal Support For Deposition & Testimony Assistance

Since 1996, U.S. Legal Support has provided exceptional litigation support services to attorneys, law firms, and other legal industry partners of all sizes and types. We’re connected to a network of more than 5,000 highly skilled court reporters and transcriptionists across the country ready to attend your deposition or other legal proceeding. Our vast network understands the unique nuances of today’s ever-changing legal landscape, including eDiscovery challenges and beyond. 

In addition to court reporters for in-person, hybrid, and virtual proceedings, U.S. Legal Support offers top-notch technical support during your proceedings, litigation consulting, remote deposition services, record retrieval and analysis, interpreting and translation services, and file exchange via a secure Client Portal.  

Reach out today to discuss your legal needs or secure a court reporter.

Sources: 

1. 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/
2. Primerus. Deposition And Trial Testimony: A Survival Guide For Your Clients. https://www.primerus.com/article/deposition-and-trial-testimony-survival-guide-your-clients