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Tuesday, October 4, 2016

Deposition Do’s and Don’t’s -

 

Litigation, or resolving disagreements through a lawsuit, are a growing concern to both business owners and individuals. While there are alternatives to litigation (and should be considered if you have a dispute), the fact is that most significant disputes end up on the path to court.

Matters that are subject of litigation are ultimately decided on facts and the applicable law. The process by which parties uncover those facts is called discovery.  There are many tools in the discovery toolbox.  A deposition (questioning of a party or witness under oath, often referred to as a “dep” or “depo”) is one of the most powerful tools.  

 
At the start of the proceeding, the judge sets a date by which depositions are to be completed.  Attorneys issue subpoenas requiring a party or witness to appear at a certain place on a certain date and time (production of documents or other evidence may also be requested).  A court reporter is present to create a record of the questions and answers.  Some depositions are video recorded.
 
At the deposition, both parties should have their attorneys present.  A witness can have his/her own attorney present if he/she so desires.  Those testifying are placed under oath, and the attorney issuing the subpoena then starts the questioning.  Next, the opposing attorney has a turn to ask follow up questions.  This normally goes back and forth until the attorneys are done.  
 
Depositions aren’t just about questions and answers.  Just as critical as what was said can be how it was said.  Was the person evasive?  Uncomfortable?  Credible?  Nervous?  Sure of the facts?  Would the person damage or help the case if testifying in court?  These issues can be critical when deciding whether to settle a case or proceed further.  If one party’s witnesses are much weaker than those of the opposition, it may make that party much more willing to settle.
 
If you’re going to be deposed, you should keep the following in mind:
 
Tell the truth.  If you knowingly make a false statement while you’re under oath, you may be charged with perjury. In addition, you will lose credibility, and weaken, your case.
 
If you honestly don’t know the answer to a question, say you don’t know.  A deposition isn’t a contest and you won’t lose points by truthfully admitting you don’t know something.
 
Stick to the point and answer the questions as asked.  Needlessly stating information not requested may damage your case.  
 
If you don’t understand a question, ask that it be repeated or re-phrased.  If you feel you need to talk to your attorney before answering, ask to speak to your attorney. After doing so, answer to the best of your ability, in light of your attorney’s advice.  Your attorney may object to a question, but you may have to answer it anyway.  Prior to trial, your attorney may ask the judge not to use the response as evidence, as the question was improper. 

 

Answer the question asked, not the one you wanted to have asked. Listen carefully to the question and wait until the person asking it has completed the question. Too often, people hear what that want to hear, which may not be what was asked. Answering a question that was not asked could put testimony into the record that could damage your case. When in doubt, ask the questioner to clarify his or her question before you try and answer it.

Though depositions can be stressful, they are not to be feared.  They are opportunities for all parties involved in a legal matter to tell their side of the story.  

 

The Law Office of Randall P. Brett represents both plaintiffs and defendants in many different types of lawsuits as well as in arbitrations and mediations. If you have litigation-related questions, need an attorney to represent you, or are considering litigation, give us a call.


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