Depositions: What are they? And how can they ‘make or break’ your case?

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A.    Introduction

A deposition is a formal question-and-answer session conducted before trial where a witness gives sworn testimony under oath. The witness (called the "deponent") answers questions from attorneys while a court reporter records everything that is said. The testimony is later transcribed into a written transcript.

A deposition can be one of the most important events in your civil lawsuit. Cases are often won, lost, settled, or significantly affected by what happens during depositions.  Think of it as testimony given outside the courtroom that can later be used in Court.

B.    Scheduling and Preparing for Deposition

A deposition is scheduled by sending a Notice of Deposition to the deponent.  A Notice of Deposition is a legal document informing a party that their deposition will occur at a specific date, time, and location (physical or virtual).  The Notice of Deposition also generally specifies the method of recording and estimated duration. 

It can become necessary to depose people in cases for a variety of reasons.  It is common in civil litigation to take depositions of the Plaintiff(s) and Defendant(s).  Fact witnesses can also be deposed.  Fact witnesses are anyone with first-hand knowledge of relevant events.  Fact witnesses can include eyewitnesses, employees, customers, and family members.

You can also depose experts in relevant fields to use their expert opinions in your case.  Commonly deposed experts include doctors, engineers, accountants, and economists.  Expert deposition testimony can be very valuable to prove a point crucial to your case.  For instance, a doctor’s expert opinion attributing your permanent disability to the underlying car accident could be the crucial evidence that wins your personal injury case.

You can also be required to produce documents at deposition.  Documents you could be required to produce include: e-mails, contracts, financial records, personnel files, and/or photographs. Failure to produce the required documents could result in motions to compel and/or sanctions.

To prepare for your deposition, you should begin by reviewing all the key documents of your case, such as contracts, e-mails, reports, medical records, and business records.  You should also review prior case pleadings and documents, such as the Complaint, discovery responses, Affidavits, and prior testimony.

Your lawyer will help you prepare for your deposition.  Your lawyer should discuss with you deposition procedures, expected deposition questions, and any areas of concern in your case.  Prior to deposition, you should refresh your recollection on all relevant case facts.

C.    During Deposition

1.     What to Expect at Deposition

Depositions involve testimony given under oath, just as if you were in Court testifying.  This means that the deponent swears or affirms that their testimony will be truthful.  Giving knowingly false testimony can lead to serious credibility issues, Court sanctions, and/or Perjury charges.  It’s very important to always tell the truth.

A court reporter will be present at any deposition.  The court reporter will administer the oath to the deponent and record their testimony with stenographic equipment.  The court reporter will then produce a transcript of the deposition, creating an official written record.  The court reporter certifies the accuracy of the deposition and provides a certified Court transcript for Court use.  Sometimes videographers also record the deposition.

Testifying at deposition can be a grueling process.  Depositions in simple cases often last 1-3 hours.  In more complex cases, depositions can last a full day or even multiple days.  Depositions can be in-person or virtual.  In-person depositions usually occur at law offices, court reporter offices, and/or Courthouse conference rooms.  Virtual depositions can be conducted through Zoom, Microsoft Teams, or other similar online platforms.  Virtual depositions have become much more common in recent years.

The scope of depositions is usually broader than what may ultimately be admissible at trial. Generally, attorneys may inquire into any information reasonably calculated to lead to admissible evidence.  Common deposition topics can include:

• Facts surrounding the dispute

• Relevant documents and communications

• Damages

• Medical history (if relevant)

• Employment history (if relevant)

• Expert opinions

• Business practices

  
  

Your lawyer will be at the deposition with you, but your lawyer can’t guide or ‘coach’ your testimony during the deposition.  Your lawyer can only object, in certain scenarios.  Unlike trial, however, most objections are simply stated for the record rather than decided on the spot.  Common deposition objections include:

-   Objection to Form – If the question is vague, ambiguous, confusing, compound, and/or misleading.

-     Objection as to Privilege – If the question asks for something protected by attorney-client privilege and/or attorney work product doctrine.  Follow your lawyer’s instructions on whether or not to answer if this objection is raised.

-       Asked and Answered – For repeated questioning.

-       Mischaracterizes testimony – If the question inaccurately describes prior testimony.

-        Improper/No Foundation – If the question lacks factual basis.

In most situations, you can answer a deposition question after your lawyer’s objection is noted for the record.  However, certain exceptions include: (1) Privilege – the lawyer may instruct the witness not to answer; (2) Court Order – the lawyer may instruct the witness not to answer to comply with a court order; and (3) Harassment or abuse – sometimes used to protect the witness from improper conduct.

2.     How to ‘Ace’ Your Deposition

In deposition, it’s important that you testify truthfully, because you are under oath just like if you were testifying in Court.  During your deposition, you should answer any non-privileged questions, and you should also follow your lawyer’s instructions.  Don’t do anything to intentionally obstruct the deposition process.

Good deposition answers are truthful, concise, and accurate. You should respond, rather than react, to deposition questions.  When responding, you should consciously: (1) LISTEN; (2) THINK; and then (3) ANSWER.  You shouldn’t give long explanations that go beyond the question. Never guess if you don’t know the answer.  The single most important rule for your deposition is:

Tell the truth, answer only the question asked, do not guess, and stop talking once the answer is complete.

That simple rule prevents many of the mistakes that cause the greatest damage in depositions.  To summarize, here’s our law firm’s top five tips on how to ‘ace' your deposition:

1.     Tell the truth – Never guess or speculate.

2.     Listen carefully – Answer only the question asked.

3.     Stay calm – Remain professional even if questioning becomes aggressive.

4.     Avoid volunteering information – Answer the question and then stop.

5.     Don't argue – Arguments almost always hurt credibility.

D.    Rule 30(b)(6) Depositions – Your secret weapon against ‘Big Business’

A Rule 30(b)(6) deposition is a special type of deposition, addressed in Rule 30(b)(6) of the Rules of Civil Procedure, where the deponent is an organization, such as a business.  Instead of deposing a specific individual, the requesting party identifies topics for the business to address in deposition.  The business must then designate one or more individual representatives to testify on its behalf.  Rule 30(b)(6) depositions can be taken of organizations such as Corporations, LLCs, partnerships, and government entities.  The testimony is considered the testimony of the organization itself.

Rule (30(b)(6) depositions can be crucial to your case’s success because they force a business to provide its official position on the designated topics.  The business must investigate the claims, gather relevant information, and prepare its witnesses. The designated witness(es) must testify about all information reasonably available to the organization, not merely personal knowledge.  This often uncovers critical case facts.

Rule 30(b)(6) depositions are extremely burdensome for businesses.  The deposed business must often investigate the claims extensively, gather information from different internal departments, and talk with current and former employees.  The amount of documents to review can be massive.  Designated employee-witnesses may need hours or days of deposition preparation, taking them away from profit-producing work.  In Rule 30(b)(6) depositions for complex litigation cases, multiple employees may need to be deposed.  Corporate defense counsel will spend significant time preparing for and attending Rule 30(b)(6) depositions.  In large cases, defense costs for Rule 30(b)(6) depositions can reach tens or hundreds of thousands of dollars.

In this regard, Rule 30(b)(6) depositions are a powerful tool in cases against ‘Big Business.’  A well-conducted Rule 30(b)(6) deposition can: (1) obtain crucial party admissions; (2) expose the deponent’s lack of knowledge; (3) reveal inconsistent positions; (4) support Summary Judgment motions; and (5) and increase settlement pressure.  Poor corporate testimony often changes litigation strategy.  Thus, many experienced litigators view Rule 30(b)(6) depositions as among the most powerful discovery tools available.

E.     Conclusion – Why depositions can ‘make or break’ your case.

Depositions serve many significant purposes:

-        Lock witnesses into testimony – A witness can’t easily change their story later.

-        Reveal the case’s strengths and weaknesses – Lawyers can learn what witnesses know and don’t know, and whether they are credible.

-        Create impeachment material – If a witness changes their testimony at trial, deposition testimony can be used to show inconsistency.

-        Influence Settlement – Many cases settle after key depositions because parties gain a realistic understanding of liability, damages, and/or witness credibility.

-        Support Motions – Deposition testimony is often used in Summary Judgment motions, discovery motions, and other evidentiary motions.  A strong deposition can significantly improve a party's settlement position. A poor deposition can severely damage a case.

Deposition testimony is often brought up later in trial.  It can be used to impeach witnesses by showing inconsistencies in their sworn statements.  Deposition testimony can be used to support pre-trial motions, such as Summary Judgment Motions.  It can be used to refresh witness recollections and help them remember relevant facts.  Deposition testimony can even be directly read into evidence at trial, in certain circumstances. 

If you’re being deposed, it’s generally a good idea to have a lawyer represent you.  Lawyers typically spend substantial time preparing for depositions because the testimony can follow a witness throughout the case.  A lawyer can help you prepare by reviewing relevant facts and documents, practicing questioning, and helping you anticipate potential deposition issues. 

During deposition, your lawyer can make objections to preserve issues and/or prevent the disclosure of privileged information.  Your lawyer can prevent unfair tactics and address abusive or improper questioning.  Especially since deposition testimony is under oath, many deposition errors are difficult to undo. Even truthful witnesses, if not properly prepared, can seriously harm their case through careless answers.  In short, having a lawyer greatly helps you minimize mistakes in your deposition. 

Similarly, an experienced lawyer has the specialized skills to successfully depose an opposing party in your case.  Your lawyer can help you depose the opposing party by asking strategically important questions, obtaining admissions, preserving testimony for trial, authenticating documents, developing impeachment material, and building support for dispositive motions.  Conversely, a poorly-conducted deposition can miss critical evidence that may otherwise never be recovered.  A lawyer skilled in cross-examination knows how to elicit critical evidence out of hostile opposing parties.

When you’re deciding which lawyer to hire for your case, you want a trusted and experienced trial lawyer on your side.  Attorney Peter Isakoff regularly handles civil litigation cases involving depositions.  If you’re in need of a civil trial lawyer, please contact The Law Offices of Peter Isakoff anytime, day or night, at (336) 863-8348 (Main) or (336) 864-9115 (Español).

DISCLAIMER: The information in this article is provided for informational purposes only. It is not offered as and does not constitute legal advice. The accuracy of the information may change pending changes in applicable law. If you have questions about a specific matter, you should contact a lawyer. The use of this article or any information provided in it does not establish any lawyer/client relationship.