Chapter 11-6 Depositions

11-6 Depositions

A deposition is a court proceeding outside the presence of the judge or jury where an attorney asks questions of a witness, call the "deponent." A court reporter will be present to record (by one or more means) everything said on the record, so that a transcript of the deposition can be prepared, if ordered. Answers given at a deposition are under oath or affirmation and can be used in court for many purposes, often to impeach or undermine the deponent's testimony and credibility. As a general rule, leave of court is not required to take a deposition unless the plaintiff seeks to take a deposition within 30 days after service of a summons and complaint upon any defendant, unless the defendant has already initiated discovery demands of its own. A deponent may or may not be required to bring documents to the deposition, depending upon whether the Notice of Taking Deposition is "Duces Tecum," or not. If it is duces tecum, then the deponent is required to bring to the deposition documents identified in the Notice, usually by way of an attachment thereto. Thirty days advance notice must be provided to party-deponents noticed for deposition duces tecum.

11-6:1 Preparing the Deponent for Deposition

Thoroughly discussing the deposition with the deponent prior to the deposition is not only acceptable preparation, it is strongly encouraged and may constitute malpractice if not properly done, particularly when preparing a party-deponent. Attempting to "prepare" the deponent during the course of the deposition, however, is often referred to as "coaching." Coaching is not only improper, it borders and can cross over the line into the unethical. How one prepares a witness for deposition is largely a function of whether the deponent is a party to the action or not. In either case, the purpose of deposition preparation should not be to "tell the witness what to say," but to familiarize the witness with the process and to discern what the witness knows and assist him or her in how best to articulate it.

11-6:1.1 Party Deponent

A "party-deponent" is any person scheduled for a deposition who is named as a party in the lawsuit or is the representative of any entity named as a party in the lawsuit. Preparation of a party-deponent is usually easier than preparation of a non-party deponent because the attorney-client privilege shields a party-deponent from having to disclose information exchanged between counsel and the deponent in preparation for the...