Using Deposition Testimony at Summary Judgment

Why Depositions Matter Before Trial

Depositions often determine the fate of a case before it ever reaches a courtroom. While many non-lawyers think of depositions simply as pretrial interviews, attorneys understand that these transcripts frequently provide the decisive evidence that wins or loses a case.

Because a large percentage of civil disputes end at the summary judgment stage rather than in trial, the testimony captured in depositions is critical. Summary judgment motions invite a court to decide whether the facts are so clear that no jury needs to weigh in. If deposition testimony supports one side’s version of events, the judge may resolve the dispute without further proceedings.

The way testimony is elicited, recorded, and later cited can shape how a judge perceives the case. Done well, depositions become the backbone of a persuasive summary judgment brief. Done poorly, they create confusion or leave damaging testimony unrebutted.

The Strategic Value of Depositions

Used correctly, deposition testimony frames dispositive motions and can define the narrative of a case before trial. Lawyers must think beyond the immediate questioning and consider how each answer might appear in a motion months later. Deposition testimony is sworn, transcribed, and admissible in ways that ordinary discovery responses are not which means every exchange has potential evidentiary significance.

As attorney Seth Horvath of Nixon Peabody LLP explains, “Each commercial case is unique, and the challenge lies in helping clients identify creative and effective legal solutions tailored to their business goals.” That creativity includes deciding which portions of deposition transcripts to highlight, how to frame them, and when to rely on them rather than affidavits.

Building a Record With Purpose

Good deposition practice means thinking about summary judgment long before motions are filed. Lawyers who anticipate how testimony may be used later are better prepared to create a clean, persuasive record. That involves asking precise questions, pressing for clarity when witnesses hedge, and objecting where appropriate to preserve the record.

“A well-structured deposition and a clear evidentiary record can make the difference in recovering assets and administering estates,” notes Matt Christensen of Johnson May.

One recurring question is whether affidavits can substitute for deposition testimony. Courts often prefer deposition transcripts because they are subject to cross-examination. Affidavits can supplement the record, but are not as powerful as sworn testimony. For that reason, a well-prepared deposition can save attorneys from having to rely on weaker forms of evidence.

A transcript full of jargon or vague testimony is less effective than one that clearly lays out the facts, which is why it is critical to create plain-English records that both judges and clients can understand.

Affidavits, Errata, and the Clean Record Debate

Another challenge arises when witnesses seek to revise their testimony. Rule 30(e) of the Federal Rules of Civil Procedure allows the use of errata sheets, but their scope is controversial. Clerical corrections are generally permitted, but substantive changes often raise red flags. Extensive errata changes can backfire, leading judges to question the reliability of testimony. Therefore, lawyers must weigh how aggressively to use or oppose errata, balancing strategic gains with the risk of undermining credibility.

“Counsel’s role is not only to fight hard but also to guide clients toward reasonable decisions that avoid unnecessary escalation, ”advises Richard Hellerman of The Law Office of Richard K. Hellerman, P.C.

Crafting the Story for Summary Judgment

At the summary judgment stage, lawyers must decide how to present testimony: whether to include full transcripts, selected excerpts, or carefully chosen quotations. Too much detail risks overwhelming the court, while too little may leave out critical facts. The form also matters. Some attorneys favor narrative presentations, while others rely on statements of undisputed facts. Increasingly, audiovisual clips are being used to provide judges with immediate, persuasive context.

In the end, the most persuasive briefs tell a coherent story while still meeting evidentiary requirements. In other words, deposition testimony should be woven into a larger narrative rather than dropped into briefs without context.

Defending Against Summary Judgment Motions

Deposition testimony is equally important when resisting an opponent’s motion for summary judgment. Attorneys can use testimony to demonstrate genuine disputes of fact, undermining the idea that the case can be decided without a trial. Motions to strike, objections to improper formatting or citations, and highlighting inconsistencies are all part of this defensive playbook.

Rule 56(d) of the Federal Rules of Civil Procedure provides a key tool for opposing premature motions. If a party can show that essential facts are unavailable despite diligence, courts may deny or delay summary judgment. State-law equivalents offer similar protections. Here again, deposition testimony is crucial; it can show that material facts remain contested, making judgment as a matter of law inappropriate. In business disputes, deposition testimony often reveals the intentions and credibility of key actors, making it indispensable when rebutting an opponent’s narrative.

Depositions as Case-Deciders

Most civil cases never make it to trial. Instead, they are resolved at the summary judgment stage, where deposition testimony often proves decisive. By approaching depositions strategically, anticipating summary judgment, avoiding credibility pitfalls, and crafting a coherent story, lawyers can turn hours of questioning into persuasive evidence that determines case outcomes. In this way, depositions are not merely procedural steps but essential investments in a case’s ultimate resolution.

To learn more about this topic, view Using Deposition Testimony at Summary Judgment. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested in reading other articles about litigation.

This article was originally published here.