Exploring Depositions Within Discovery


“Discovery” is a word that frightens many litigants — what it means, the cost, and the time commitment that it will entail. The part of discovery that many litigants are most concerned about are “depositions” — being questioned by your adversary’s attorneys and challenged under oath. It is an unknown process about which many litigants have heard a great deal, and know very little.


So, What Are Depositions? Why Do They Take Place?

Depositions serve two essential purposes for the lawyers taking them: first, to get information, be it from the adversary party or third-party witnesses with knowledge that is relevant and material to the case; and second, to “lock-in” the testimony of the witnesses you are deposing, so that they cannot change their testimony to suit future developments. This is particularly necessary when you take the depositions of the opposing party. You want to know what they will say so that you can prepare your case properly. For these reasons, depositions are and will continue to be, a necessary part of civil litigation.


When You Are Told That You Are Going to Be Deposed, What Should You Do?

Prepare. And then relax. Only by preparing can one relax.


How Do You Prepare for a Deposition?

First, you should review all of the pleadings; you want to know what you said in your complaint, answer, counterclaim, cross-claim, or reply. The information in those documents should not come as a surprise to you, as you should have looked at them carefully when they were prepared by your attorney. However, refreshing one’s memory is always a good idea.

Next, review any sworn statement (such as an affidavit) and any responses to other forms of discovery (such as responses to requests for admissions or answers to interrogatories) that you have submitted in the litigation. Again, the information should be familiar to you. Know that it will also be familiar to the attorney questioning you and he will likely ask you about some of your prior statements and answers. Then, in coordination with your attorney, review key documents that you are likely to be questioned about, as well as those necessary to refresh your recollection. Finally, speak with your attorney to get an idea of what topics she anticipates will be covered and questions that may be asked. After this, you should be ready to go.

The deposition itself is usually conducted in a straightforward and non-threatening manner. Yes, you will be sworn in, and yes, there will be a court reporter taking your testimony, and, yes, you will be asked questions by an attorney – usually one representing the other party. But they can only ask questions. As your lawyers will probably instruct you, listen carefully to the question and answer only the question — clearly and concisely. That does not mean to be evasive and to avoid providing answers that may not be favorable to you. However, it is the other attorney’s job to ask the right questions to elicit relevant information; it is not your job to help the other attorney and to make sure that he understands everything. If he forgets to cover a topic or does not know the right question to ask, that’s on him. And, if your attorney believes that your answer was not sufficient to accurately respond to the question asked, she can ask you questions afterward to allow you to elaborate.

Also, your lawyer will instruct you not to guess; you don’t need to know an answer just because a question was asked of you. However, that does not mean relying on saying, “I don’t recall,” if you actually do know an answer. If you understand the question and know the answer, answer the question. It is easy for the other party, and judges and juries, to see when someone is being evasive. That will not help your case.

You have prepared, and you know how the deposition will be conducted. So relax. There will be no surprises. You’ll do fine.

Contact me with questions or comments.

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