Litigation Strategies Part VI: When in Doubt Depose

Most people can’t just look at other people’s emails, tax returns or bank accounts. They can’t ask them questions about their intentions, their prior statements or their relationships with other people, and require them to answer truthfully and completely.  But lawyer’s can – if there is a case pending, and if it is “relevant” to that case.

Among laypeople, discovery is one of the least understood and most frightening aspects of being involved in litigation – and rightfully so. The scope of relevance in a case is anything that is reasonably calculated to lead to admissible evidence. That means, the things the lawyer wants to ask or look at don’t need to be directly admissible in a case – only that by looking at these things, or getting these answers, the response might lead them to something that might be admissible.  That’s pretty broad.

Tools of discovery include: subpoenas, interrogatories, requests for production, requests for admissions, and the granddaddy of them all, depositions.

When I started practicing law I was in awe of, and fell in love with, the deposition. I’m still in love, and if anything, my love has only deepened with time.

As I tell young lawyers coming into the litigation arena, depositions are when you learn your case. Until you sit across the table from someone (a court reporter having already “sworn them in”) and hear them tell their side of the story; watch them fidget as they try to avoid explaining the uncomfortable aspects of their position; see them try to stick to the answers they’ve rehearsed, and dodge the probing follow up questions you present; you really only have a superficial understanding of the strengths and weaknesses of your case.

Laypeople are completely ill-prepared for the process. They want to tell their story, but they fear being tricked by wily lawyers – as they should be, and they are often coached beforehand about how to respond to critical inquiries.  As a result, the process is often unpredictable.  Truths may come spilling out of nowhere. Veils might come tumbling off.  Witnesses often break free of their boundaries and take off on tangents that illuminate the core dynamics behind the case.  Conducting a deposition can be exhausting, but at the same time exhilarating.  Maintaining composure and staying focused are key.  Preparation is critical, but remaining in the moment and ready to follow tracks you didn’t see coming is equally important.

For young lawyers, being responsible for depositions can be intimidating. The other attorney may be more seasoned and know more tricks of the trade – tossing out objections, asking leading questions of a non-adverse witness, attempting to badger your client into statements they didn’t intend to make.  Depositions can become heated between lawyers as each tries to control the atmosphere.

There is an art to deposing a witness, and skills necessary to preparing your client for their own deposition. Some of that can be taught, but a lot of it can only be learned by doing.  From my way of thinking, if you’re going to litigate, you have to get comfortable with – no – learn to love –  this key element of the discovery process – the deposition.