As one of the most fruitful discovery tools, depositions in a commercial lawsuit require a great deal of planning.
A deposition is out-of-court testimony, under oath, from a party to the dispute or a third party who is a witness to the dispute. Deposition testimony is recorded and can be used later on to bolster your case or to attack your opposition’s theory of the case.
A deposition allows an attorney to:
- Find out what the witness knows and will likely say on the stand.
- Gauge the witness’s effectiveness. g., is the witness credible, coherent, and likeable, or evasive and combative?
- Pin down the witness’s testimony so that the witness cannot easily change it without looking unreliable.
Witnesses Your Attorney Will Depose during Commercial Lawsuit Depositions
Your attorney will probably plan to depose the people he or she expects to be important to the opposing party’s case. These witnesses usually include:
- The opposing party if the opposing party is an individual
- If the opposing party is a business entity, its owners, managers, and employees who know about the substance of your lawsuit;
- The opposing party’s expert witnesses.
The opposing party will similarly want to depose your important witnesses. As a general rule, your attorney will not need to depose your witnesses as they will speak willingly to him or her.
Before each deposition, your attorney will want to determine its objectives. The focal points are usually the information you hope to gain and the facts you hope to establish to further your case theory. Your attorney will assemble a deposition outline (i.e.., a list of topics to cover with the witness) to guide the questioning. He or she may want to review with you the theories of your case and your opponent’s case and enlist your help in identifying topics expected to be fertile grounds for producing information.
Your attorney will be responsible for all administrative details such as scheduling, booking the location, hiring a court reporter and videographer, notifying the witness, and serving the witness with a subpoena if necessary.
Who Will Attend the Deposition
You can expect the following people to attend a deposition:
- The plaintiff and defendant (or a representative of each if they are entities).
- Attorneys for both sides.
- The person being deposed.
- A court reporter.
- A videographer if the deposition is being videotaped.
- A court appointed representative to resolve disputes.
- An interpreter (if necessary).
Commercial Lawsuit Depositions of Expert Witnesses
Depending how technical or specialized an element of the claim is, one or both sides may hire expert witnesses. Expert witnesses may be subjected to depositions and your attorney must determine whether deposing the opposing experts is a prudent decision. Deposing an expert witness has advantages and disadvantages. Some advantages are:
- You have an opportunity to discredit the expert’s opinion through your own research.
- You can assess the expert’s likely appeal to a jury (sometimes experts can have a celebrity effect).
- You can judge how the expert witness performs under cross-examination.
Some disadvantages are:
- You may reveal your strategy, which gives the expert the opportunity to find the gaps in his or her testimony and prepare for that at trial.
- The expert witness can adapt to your attorney’s cross-examination style.
Some expert witnesses exclusively testify to make their living and they will present a more challenging deposition that requires even more preparation.
If You Are the Witness Being Deposed
If you are the person being deposed, your role is first and foremost to answer questions truthfully. Your testimony will convey your credibility and your demeanor. Your attorney’s role is to guide you on how to answer questions honestly without providing too much information that leaves your testimony susceptible to attack by opposing counsel. Your attorney will doubtless advise you to answer only the question that you have been asked and then to stop talking.
Preparation is critical. Your attorney should discuss with you the elements of each of your claims and defenses so you are not confused by a particular line of questioning. He or she will help you to anticipate what topics the questions will focus on and develop a plan for how to respond. Your attorney should also coach you on how to handle objections when impermissible questions are asked by opposing counsel.
The overarching goal is building the transcript in your favor. It is also about building your credibility. A calm and confident demeanor is imperative because disruptive or combative behavior will undermine your credibility and convince opposing counsel they can throw you off track.
Always answer truthfully, even if you think the answer may hurt your case. Even a minor untruth can have a damaging effect on your credibility. If you lose your credibility, your case will be compromised.
Your attorney’s role during the deposition is to protect you and the record from damaging testimony. If your attorney objects to a question, wait until he or she tells you to respond. Keep in mind however that you will be expected to answer most questions to the best of your ability and practically you will only be able to refuse to answer in very limited circumstances.
Before the deposition is over, your attorney will request a deposition transcript, which you and your attorney can later review.
Depositions are generally limited to seven or eight hours, which can still be a grueling experience for anyone. Take breaks. Alert your attorney if you feel uncomfortable and need to step out to either talk things over with your attorney or clear your head.
After depositions are completed, it is important to discuss with your attorney the takeaways. For example,
- Was the testimony helpful, damaging, and as expected?
- Did the witnesses seem credible?
- How will a jury respond to the competing theories of the case?
The takeaways from depositions in a commercial lawsuit can often give the parties an idea of how the trial will play out. At this point, settlement negotiations often resurface as the parties assess their respective positions.