Depositions: A Crucial Part of Litigation



One of the most important legal tools attorneys can use during the discovery process is the deposition. To understand what a deposition is, and why it is so important, we must first discuss the discovery process. During “discovery,” an attorney attempts to collect any and all relevant evidence from the opposing side. This is done prior to the trial, where the court has minimal involvement and helps the attorney get a more well-rounded understanding of the case at hand. During this process, attorneys typically ask for pertinent documents and ask for oral/written statements (depositions and interrogatories) from involved parties.

During a deposition, witnesses are asked to answer a series of questions regarding their experiences and knowledge of the case. Attorneys will usually ask a wide range of questions to truly understand the nuances of the matter – and to get a feel for whether the witness is credible and telling the truth. Another reason the deposition is so vital is that the testimony is given under oath before the actual trial. This means that if a witness answers a particular question differently while being cross-examined during the trial, the attorney can point out the discrepancy between the answers to the jury. Additionally, when deposing an adversary, it is an excellent opportunity to obtain admissions whereby a witness testifies against their interest by admitting a certain event occurred.

Oral depositions are both extremely useful but they can also be expensive because transcript services are costly. Depositions are typically recorded by a stenographer so that both attorneys can reference what was said later.

It is here that attorneys can have a live interaction with a witness and ask them whatever they need to ask. The opposing side’s attorney may object to certain questions, but these objections do not bear much weight because no judge or court official presides over depositions.  Typically, any question that does not seek privileged information or that is not so irrelevant or vexatious that it is harassing must be answered.

They key to a successful deposition, whether taking one or defending one, is preparation.  In taking a deposition, a lawyer needs to know the theory of his or her case.  What elements must be satisfied to make a case? How can the facts be used to prove those elements? What questions can the witness answer to demonstrate those facts? Questions regarding all aspects of a legal theory must be asked.

Different types of questions are also helpful. Open ended questions often require a witness to give expansive answers that will give a lawyer a better understanding of the facts and fodder for more questions. Some examples of open-ended questions are:

  • “Describe your job to me.”
  • “Explain the training that you were given by your employer.”
  • “What happened that day?”

            Conversely, narrow, and especially leading questions, can also be very helpful. Sometimes, after a series of more open-ended questions.  For example, keeping with the line of questions above: “So you never were given ___ training at work, were you?

            In defending depositions, it is important to describe what the process will be like and the likely areas of inquiry. Role play with specific questions is also very helpful in preparing a witness for a deposition.

            Documents are frequently used at depositions, and it is important to try and go over any documents that may be used at a deposition with a witness when you are defending a deposition. Similarly, when taking a deposition, a lawyer must painstakingly review the documents produced in discovery, to look for documents that may be useful (whether helpful or potentially harmful) at a deposition and familiarize him or herself with these documents so he or she can ask meaningful questions regarding them.

            Finally, depositions are needed to simply find out what someone may testify to at trial.  Even if one expects an answer that is bad for their case, the question should be asked in a deposition so that that there are no surprises at trial.

            In short, depositions can be a costly and time-consuming part of a case, but they are crucial.  At Matsikoudis & Fanciullo, we consider depositions to be one of the most, if not the most important part of discovery. We seek to depose all witness that may have useful information and we will not avoid them because of time or cost.

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