To Impeach or Not to Impeach: That is the Question (Part Two)
A second decision point often arises where the witness has made a statement and you can impeach the witness in the deposition or save the impeachment for trial. When should you impeach and when should you wait?
Generally speaking, you should impeach in deposition. Most civil cases settle, and one of the litigator’s goals is to convince the other side that there are sufficient problems with their case – sufficient uncertainty – that they should be eager to settle. Impeaching a critical witness at deposition on an important point may be one factor in helping the other side to take a reasonable settlement position. And unused impeachment may never be a factor in the case if the parties settle before trial.
If you believe the case is likely to go to trial, waiting on impeachment sometimes makes sense. The question is how comfortable you are with the impeachment trap you wish to spring? The danger of waiting until trial to impeach is that you don’t necessarily know what the witness will say in response. If the witness has a good response to your impeachment efforts, your impeachment may fall flat, or worse, you may harm your own credibility by losing a high-stakes battle with the witness in front of the jury. Saving impeachment for trial is only an option when you are comfortable that the impeachment will be effective and the witness does not have a reasonable out.
