Depositions

I’ve written before about the life of a lawsuit and how long stretches of time appear with nothing seeming to happen. As I said before, some of that is waiting on reactions from the other side and some of it is work done by the attorney that doesn’t require much from the client, especially if your attorney has done his work well early in the representation in getting information from you about your case.

One of the “hot” periods for a client after the Complaint has been filed is his deposition. In general, depositions are an oral question and answer period between an attorney and the person being deposed. Depositions are part of “discovery” (with one exception I’ll talk about below) which also includes Interrogatories (answers to written questions) and Requests to Produce Documents. Depositions can be taken of anyone involved in the case, witnesses, experts, or parties. The rules are the same although the reasons for the deposition may be different.

Under the North Carolina Rules of Civil Procedure, the party being deposed or their attorney simply has to receive ten days written notice of when and where. A non-party witness may also require a subpoena from the court. In practice, attorneys and the witnesses try to agree on a time and place that is most convenient for everyone.

A deposition does not have to be, and most of the time isn’t, held in a courtroom. Usually the deposition is held in an attorney’s office, most frequently in the office of the lawyer who is representing the party being deposed. This is not a requirement and I’ve done depositions in hotel rooms, airport lounges, doctor’s offices, around kitchen tables, and a barge in the middle of the Cape Fear River outside of Wilmington. What is required is a court reporter. She takes down all the questions and all the answers and about two weeks after the deposition, provides transcripts to all involved. Other than the party being deposed, the attorney who asked for the deposition, other attorneys involved in the case, and the attorney representing the deponent, no other persons must be present. However, occasionally other people interested in the proceedings may sit in, such as spouses or expert witnesses. Strictly speaking, no one can be excluded unless one of the attorneys makes a motion before the court for a protective order. Practically speaking, if there is a legitimate reason, (such as trying to see if two witnesses’ stories match up) the attorneys will oftentimes agree.

Depositions of parties or retained expert witnesses are usually the only way an opposing attorney can have any direct contact with that person before trial, so the main purpose of most depositions is for the opposing attorney to simply learn more about the other side’s case. As the attorney learns about the case, he can also “lock in” the person’s story. For if the person were to say something different at trial, the Rules of Evidence would allow the attorney to bring out the transcript and point out that they said something different before. The implied question is “are you lying now or were you lying then?”

If you are the one being deposed, your attorney should prepare you for the process ahead of time. In the deposition itself however, your attorney may seldom ask questions or make objections during your deposition. After all, he is under no restriction from talking to you, and any questions he asks will only help the other side. Only when he thinks that you have misunderstood a question or answered something clearly incorrectly, will he ask a few direct questions to clear up the issues. He also may make few objections during the deposition. Unlike a trial, there is neither a jury nor judge in a deposition, so there is no one to rule on an objection; and no one that the possible improper question would influence. For that reason, the rules allow a broad scope in a deposition. There are usually only two deposition objections. The first is an objection for privileged information:  what you and your attorney talked about. The opposing attorney is allowed to ask about how often you met, how long you met, when you first and last met, but not what you talked about. Your attorney will object and instruct you not to answer. The second common deposition question is an objection to form. Pay attention to these objections because your attorney is telling you that the question is confusing. Common improper form questions would be compound questions:  “When did you leave, what time did you get there and when did you leave again?” Another would be an unfair question that gets you to admit to something untrue, the classic being “When did you stop beating your wife?” Feel free to ask the opposing attorney to restate the question if you don’t think you understand it. Limit your answers to the questions asked with little elaboration. Your attorney will prepare you for the important points for your case and you’ll know when to elaborate, and he can ask on cross examination for any further elaboration that is needed.

While they are under oath, depositions are more informal for a trial and you can request breaks. If you get tired or feel bad, let your attorney know. You do not want to answer questions if you are not able to focus on your responses.

As stated above, a court reporter is present to document the questions and answers for a transcript. For this reason, do not respond with ‘Uh-huh” and “Uh-uhs” or head nods for a “yes” or “no.” Also wait until the attorney completes his question before giving your answer, and he should wait for your answer to ask his next question.

Depositions can take 30 minutes or 3 days, but mostly wrap up between two and four hours. Just know your case, answer the questions that are asked, tell the truth, and everything should work out fine.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him
at (910) 772-1678.