12 Aug Be Prepared for the “Worst Case” Scenario at Deposition

After a short hiatus we are starting a new series of blogs concerning some of the more uncomfortable aspects of litigation.  In prior blogs we have discussed the overall litigation process and the three general phases of litigation.  These newer series of blogs will get to the nitty gritty of litigation, and help you and your company prepare for the unexpected and uncomfortable parts of the process.  We start with the discovery process and the deposition.

The Discovery Process

Next to trial, the discovery process is the most difficult of the three stages of a lawsuit.   In a lawsuit, all named parties have the right to conduct “discovery”, which is a formal investigation into the facts of the case.  The discovery process occurs before you or your company present your case to a judge or jury so you can use the facts and evidence you uncover during the investigation to efficiently hone in on your legal strategies.  This allows you not only to more efficiently prepare for trial, but also gives you the chance to possibly settle the case and avoid trial altogether.

Discovery can come in a number of different forms, with the most common being requests for relevant documents, interrogatories (written questions), and the “deposition.”

What is a Deposition?

A deposition is the taking of an oral statement of a witness before trial, under oath.  Depositions are typically the most effective way to gather information about your case and your opponent’s case because, unlike the information recorded in documents or the attorneys’ answers to interrogatories, a deposition involves a live witness being asked questions about the case.  If your attorney asks the right questions, he or she can solicit key information to prove your case or disprove theirs.

The deposition has two purposes: To find out what the witness knows and to preserve that witness’ testimony. The intent is to allow the parties to learn all of the facts before the trial, so that no one is surprised once that witness is on the stand. Contrary to popular belief, springing a surprise witness at the eleventh hour of a trial is regarded as unfair and generally not allowed.  By the time a trial begins, the parties should know who all of the witnesses will be and what they will say during testimony.

Your attorney will spend much time preparing for the deposition so that he or she can ask the right questions of your opponent.  And if you or your company is being deposed, your attorney will spend much time preparing you for what to expect at the deposition and the types of questions your opponent’s attorney may ask you.  You or your opponent must be prepared to answer a series of questions about facts and events related to the lawsuit, as the entire deposition and your (or your opponent’s) answers are recorded word-for-word by a court reporter. The reporter is present throughout the session and will produce a written recording or transcript of the testimony at a later time.

The Deposition: A Grueling, Sometimes Invasive Process

Depositions are somewhat informal when compared to trial, and allow the parties a little leeway to ask any questions that could lead to admissible evidence.  Deposition questions can be broader than what is allowed in court, and you must answer all proper questions even if your attorney makes an objection (because the objections are decided later by the judge, except in special cases where immediate rulings may be necessary, see below). You do not get to ask any questions; you only give answers.

Also, all parties are allowed to attend the deposition.  This means you or your opponent may be forced to answer uncomfortable questions in front of all parties, for up to seven hours in one day (or more if the deposition is scheduled for numerous days).  And you must answer truthfully, since you are under oath when you answer the questions and could face civil and criminal penalties if you lie.

So What Could Go Wrong at a Deposition?  

Anything is the answer.  Unanticipated events or conduct by the opponent witness or his attorney can derail a deposition, making all of your attorneys’ preparation useless.  Neither you nor your attorney have much control over how your opponent or her attorney acts in the deposition.  If your opponent is improperly avoiding questions and/or your opponent’s attorney is asking your company improper questions or making improper objections to your attorney’s questions and disrupting the deposition, there are a number of things that your attorney can do to correct the situation:

1. Be prepared with the relevant procedural rules so that he or she can refer to them and inform the other side of their violation of those rules.
2. Bring the judge’s rules and contact information with him or her to the deposition so that he or she is prepared to call the judge to immediately address the situation (for example if your opponent flatly refuses to answer a valid question).
3. Be prepared to object to improper questions and instruct you not to answer questions if necessary to preserve a privilege, to enforce a limitation ordered by the court or to present a motion to terminate or limit the deposition.
4. Be prepared to terminate the deposition if the other side is conducting the deposition in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party. In this situation, your attorney will be able to suspend the deposition for the time necessary to obtain a court order.
5. Be prepared to seek sanctions against the opponent and his or her attorney for improperly impeding, delaying or frustrating a fair examination of the witness.

If you or your company are ever expected to be a witness in a lawsuit or if you need help deposing the other side, familiarize yourself with what’s involved in any potential deposition.  Call Edwards Law today to get a free consultation on the deposition process and whether you may need an attorney’s help to guide you and preserve your interests or your company’s interests.