After filing a lawsuit, discovery takes place. By this, we refer to the exchange of documents, written answers to questions (known as interrogatories) and sworn testimony to oral questions (known as depositions). There are several other elements to discovery, including depositions of record keepers as well as witnesses (as opposed to parties). When judges review cases in a Pre-trial Conference, they will invariably ask, “Is discovery complete?” Often there will be depositions that remain to be taken.
I was taught that there are two purposes to the taking of depositions. The first is to see how a party or witness presents himself/herself. Do they make a good appearance? Are they believable? Are they credible? Were they in a good position to see what happened? Can they narrate the events coherently? These are the questions a lawyer thinks of during, and after, a deposition. One’s appearance is evaluated. Consequently, I always tell my clients to go to a deposition dressed appropriately. Moreover, I ask them to be polite but firm. I do not want a client cajoled or induced into saying something to please the examining attorney. I also will ask clients not to be rude to the opponent’s attorney. This is not only a matter of common courtesy but it is a far better tactical approach than showing anger or hostility.
The second purpose in taking a deposition, not surprisingly, is to ascertain facts. It is a question and answer session, all about what happened during a particular incident, and the events which preceded a particular incident. During a deposition, you will have an attorney present, who will interpose appropriate objections. There is no judge, but there is a stenographer present who will record what was questioned and what was answered. Typically, there are a few breaks and discussions off the record, I tell my clients to expect that everything they say will be stenographically recorded and likely to be used in the future. A key sentence in a deposition can sometimes have a big effect on the ultimate disposition of a case. Thus the importance of being prepared for a deposition cannot be minimized. A client should always prepare with his or her attorney prior to a deposition – not with a rehearsal of questions and answers, but rather to familiarize oneself with what happened at the time of the accident or injury. The deposition takes place several months or, more likely, even years after the event occurred. It is easy to forget small but crucial details over time.
In a deposition, you may be asked if you prepared with your attorney and you do have to answer these questions. But you do not have to answer anything privileged (such as conversations with your attorney or confidential conversations with a spouse). Your lawyer is there to interpose any objections, and to stop questions that infringe on privileged information. You will also get the opportunity to review the transcript of the deposition and make corrections on what is called an “errata sheet.” Despite the fact that no judge is present during a deposition, there can be judicial involvement. A transcript can be brought to a judge either in post-deposition motion, or more likely, at the time of the trial. Excerpts from a deposition can certainly be used in the cross-examination of a fact witness to impeach that witness. The use of excerpts is even more powerful to contradict an adverse party as it has not only a powerful psychological effect but is used for what is called its “substantive” effect, something technical but more than just impeaching.
There is seldom a more crucial part to the process of discovery than depositions.
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