A deposition is a discovery tool, or a way that attorneys and litigants gather information that is relevant to the case. A deposition is just one of many options that attorneys utilize in gathering pertinent information to effectively prepare your case for settlement or trial. For example, during a divorce case, your spouse raises claims that he or she wants spousal maintenance (alimony), and you want to know why, or what their basis is. A deposition is an opportunity to ask many questions about their assertions regarding their request. On the other hand, depositions are good to see how an opponent will appear to a judge, are they a good and credible witness, or do they have behaviors that make them seem not credible? Etc. It is a way to gauge the competition so to speak.
At a deposition, both litigants appear with their attorney, the witness appears (a witness can also be a party, which is very common in family law cases), and a court reporter. Any time a witness is being deposed in your case, you can and will be allowed to be in the room to hear the deposition take place. During a deposition, the side that has called the witness starts by asking questions, the other side will have a chance to ask clarifying questions afterwards if they wish. Everything that is said is under oath, and recorded and transcribed by a court reporter.
If you and your attorney decide together to depose a witness, here are three things you should not do if you are in the room with your attorney (which again, you have the right to be present if you are a party):
1. Do not talk to your attorney during deposition.
Talking to your attorney, whether he or she is actively asking questions, listening to answers, or the other attorney is asking questions distracts your attorney from concentrating on the statements being made and developing follow up questions. Instead, if there is something you wish to communicate, either wait for a break, or write down on paper.
2. Do not sigh, roll your eyes, and or make any other verbal or non-verbal ques.
Not only is this distracting, but just as you and your attorney are judging how good (or bad) a witness the person is that is being deposed (and how they will do in court), the other side is also judging your court room decorum, and how you act at the deposition. If you have emotional outbursts, the other side is thinking you will do the same thing at the trial. It is best to remain as calm and collected as possible, no matter how hard that might seem during a very emotional case.
3. Do not respond to the witness’ answer (i.e. “you know that’s not true” or “come on!”) or make other verbal comments about the case or the other party.
Again, interruptions in the flow of asking and answering questions are very distracting, and make a very messy transcript record. As mentioned in #2, the other side is judging your courtroom demeanor just like you are judging theirs during a deposition. During a deposition (unless you are the one being deposed), it is best to listen and absorb the information later. You will have your opportunity to address the “lies” with your attorney as you prepare your case and potentially prepare to testify in court. A deposition is not the time to argue with the witness about their statements.
We hope that you have found this information to be helpful in understanding some potential pitfalls of attending a deposition with your attorney. This is not intended to be legal advice. If you have questions or concerns about your specific case, Dixon & Moseley, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.