Top Five Tips for Using Deposition Testimony to Impeach a Witness at Trial

| by Suzanne L. Smigliani, Esq.

California Code of Civil Procedure Section 2025.620(a) provides for any party to use a deposition to contradict or impeach the testimony of the deponent as a witness. When impeaching a witness with prior testimony consider the following:

Trial preparation begins long before trial and even before witness depositions begin. Have you seen something in the pleadings or written discovery that leads you to believe the deponent will be less than truthful? Prepare for the deposition by creating an outline that includes a series of questions related to the area of inquiry about which this witness is likely to bend the truth. During the deposition, make sure you get a clean and concise series of questions and answers that can be used during your cross-examination at the trial.

When preparing your cross-examination outline for trial, pay special attention to the areas of testimony which may lead to impeachment. Mark, tab, and highlight the pages from the deposition transcript you plan to use to impeach the witness if her testimony goes as you expect. Having these sections of the transcript ready will eliminate the need to fumble through the transcript disrupting your examination. Finally, anticipate any objections which may be made by opposing counsel and be prepared to respond accordingly.

During the trial, make sure you listen to the witness. Did the witness wise up and change their tune just enough to avoid impeachment? Just because you were prepared to shut her down doesn’t mean you should still do so. If the witness has weaseled his way around his prior testimony or muddied the waters with an explanation such that impeachment with the prior testimony will no longer be effective - let it go. Nothing will make a worse impression on a jury than a lawyer who wastes time reading prior testimony to no effect. Just because you spent hours preparing, don’t get so caught up in your big moment that you neglect to listen to the actual testimony given at trial.

You’ve prepared your outline, have the prior deposition testimony ready, and the witness has testified exactly as you’d hoped. Keep it short and sweet. After the witness confirms that he recalls giving a deposition, under the same oath sworn at trial, and told the truth during his deposition, you are ready to confront the witness with his prior testimony, but only the testimony that is relevant to the impeachment. If you feel the need to read multiple pages of a deposition transcript hoping to find a prior inconsistent statement, you probably didn’t follow tip number one and failed to create a clean, concise series of questions related to the issue. Don’t minimize the impact of your big moment boring the jury by reading unnecessary pages of prior testimony.

This is your moment. Whether this is your first trial or your first trial in awhile, be confident in the fact that you have prepared, listened to the witness, laid a foundation, followed the Evidence Code, and anticipated objections from opposing counsel. Stay calm and take charge.

Suzanne Smigliani is a partner at the law firm of Rheinheimer & Smigliani, APC. Suzanne has been rated AV-Preeminent by Martindale-Hubble and has been consistently named one of San Diego’s Top Lawyers. Her practice focuses primarily on the defense of real estate professionals and business owners in the areas of professional liability, employment, and general civil litigation. Suzanne graduated from UCLA and the University of San Diego School of Law and is licensed to practice by the California State Bar. As an avid hockey fan, when she is not in court Suzanne can be found at any number of ice rinks throughout Southern California. She can be reached at (619)503-1437 or via e-mail at

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