There are three main reasons a defense attorney deposes a plaintiff: The defense attorney cannot speak to you directly once you have an attorney, so this will be his or her only chance to directly question you before trial. The defense attorney is not only evaluating your answers, but how you will be as a witness at trial.
Full Answer
The short answer is that this is the 'discovery' process. Even though some questions may seem off the wall and unrelated to your claims, the defense lawyer is entitled to ask and is entitled to get an answer. He may not be able to ask that same question at trial, but during a deposition, it may be fair game.
The attorney may not “coach” the witness, either before the deposition or during it.To “coach” a witness is to tell a witness how to answer a question before the witness has had an opportunity to speak. A witness’s answer must be the product of their own thinking. The answer cannot be the product of the attorney’s influence.
There is no substitute for spending face time with your clients before their deposition. This seems axiomatic, but the majority of new attorneys working at personal-injury firms are told to appear at defense counsel’s office 45 minutes before the deposition to “prep” the client.
What is a deposition? A deposition is the process in which a witness is asked questions under oath by an attorney. Testifying at a deposition is often a mysterious and nerve racking event for most people. To give a successful deposition it is important to understand a couple of things.
You have a right to refuse any questions about a person's health, sexuality, or religious beliefs (including your own). The opposing attorney will have to explain how your answer has a direct bearing on the case in order to compel you to answer.
You should not ask only leading questions at a deposition. In some jurisdictions it may be considered improper as to form to ask leading questions at a deposition. That aside, leading questions are great for getting commitments but they do not serve the other purpose – getting discovery.
Common questions in this vein include:How did you prepare for this deposition?Have you spoken to anyone other than your counsel about this case? ... What, specifically was discussed?What documents pertaining to the case have you reviewed?Did you meet with counsel for the other side prior to this deposition?More items...•
This will depend on how many parties there are in the lawsuit. If each of the parties is represented by a different lawyer, each one may be permitted to ask you questions. However, one lawyer must complete his questions before another begins.
When a lawyer calls an adverse or hostile witness (a witness whose relationship to the lawyer's client is such that his testimony is likely to be prejudicial) on direct examination, the lawyer can ask leading questions as on cross-examination.
Leading questions are also allowed during a cross-examination when an attorney is questioning the other party's witnesses. This is because one of the purposes of cross-examination is to test the credibility of statements that a witness made on direct examination.
A Consolidated List of Proper Deposition ObjectionsHearsay. You're free to object to a question of hearsay during a trial. ... Assume facts, not in evidence. It depends. ... Calls for an opinion. ... Speaking and coaching objections. ... Privilege. ... Form. ... Mischaracterizes earlier testimony. ... Asked and answered.More items...
What Should I Do If I Object to a Personal Question During the Deposition? The deposing attorney can ask any question he or she likes, but you do not necessarily have to answer them. If you believe that the attorney has asked an irrelevant question, you can object to the question, or ask your attorney how to proceed.
How to Handle a Deposition: Advice from an OMIC Defense AttorneyTell the truth. ... Think before you speak. ... Answer the question. ... Do not volunteer information. ... Do not answer a question you do not understand. ... Talk in full, complete sentences. ... You only know what you have seen or heard. ... Do not guess.More items...
Procedurally, there is nothing magic that you need to do at the end of the deposition except to say, "I'm done for now." The other lawyers who are present then get to ask questions until everyone is finished; if another lawyer asks questions, you can follow up yourself.
There aren't too many options if you have been subpoenaed to a deposition. If you refuse after being ordered by the court to give a deposition, you would likely be found in contempt of court, leading to dire consequences. On top of that, you would still be forced into the deposition.
Hypothetical, Incomplete Hypothetical – it is an improper question to ask a fact witness a hypothetical, this will usually be combined with an “objection, calls for speculation.” Since hypothetical questions can be put to expert witnesses, there may be an “objection calls for expert testimony” too.
It is fairly rare for the deponent's attorney to ask questions of the attorney's own client, except to clarify points raised earlier in the deposition. Except for certain types of depositions, the deposition examination of the witness by all counsel other than the witness' counsel of record, for non-expert...
The opposing party can be asked questions by their own attorney. There are many reasons why the opposing counsel will not want extensive testimony by their client in a deposition.
Most defense attorneys have two main goals during a deposition. The first goal is to get your complete story.
By getting your complete story at the deposition, the attorney will be able to develop a strategy for the remainder of the case. That strategy may include trying to find inconsistencies in your story at trial. Therefore, it is important to be as accurate as possible when answering questions during a deposition.
What is a deposition? A deposition is the process in which a witness is asked questions under oath by an attorney. Testifying at a deposition is often a mysterious and nerve racking event for most people. To give a successful deposition it is important to understand a couple of things. First, you need to know what the defense attorney is trying to accomplish with their questions.
You will face hundreds of questions at your deposition. If prepared properly you will know all of the key points of your case. The rest of the questions are window dressing for the defense attorneys report to his client. So, it’s ok not to know the answers to some of those questions.
The attorney’s second goal will be to evaluate you as a witness. They will be trying to gauge how effective you will testify should there be a trial. Will you be able to effectively communicate your story to the jury? Can you accurately describe how your accident happened? Do you have a strong grasp of your injuries and treatment?
Nervousness, however, is normal and usually passes after a few minutes of questions. Don’t be afraid to be a little nervous. If you remember the defense attorney’s goals, review your case with your attorney and follow the four rules proposed here, your deposition will almost certainly be a success.
Nervousness, however, is normal and usually passes after a few minutes of questions.
Typically, the witness being deposed is represented by their own attorney. During the deposition, an attorney may ask a question that both sides had agreed was improper (e.g. relevant, or leading). The other attorney may make an objection. The objection often prompts the asking attorney to withdraw the question. In some instances, a dispute may develop over whether a witness must answer a particular question.
During the deposition, one side’s attorney asks a witness a series of questions as to the witness’s knowledge of facts, circumstances, and events relevant to the case. The witness can be the other party, someone the other party claims to have relevant knowledge, or an expert whose opinions and conclusions are sought.
To prepare for deposition, a witness can review documentation related to their claim. A witness can prepare for deposition through their attorney’s assistance. The attorney can discuss what questions are likely to be asked, and the attorney can “practice” the witness’s answer with the witness. The attorney may not “coach” the witness, either before the deposition or during it.To “coach” a witness is to tell a witness how to answer a question before the witness has had an opportunity to speak. A witness’s answer must be the product of their own thinking. The answer cannot be the product of the attorney’s influence.
A deposition is the taking of out-of-court testimony of a witness. After a civil litigation has been filed, each side, as part of the process known as discovery, is permitted to question the other side. This questioning pertains to facts, witnesses, and evidence the other side may intend to use in court proceedings. During the deposition, one side’s attorney asks a witness a series of questions as to the witness’s knowledge of facts, circumstances, and events relevant to the case.
A party may use the deposition at trial to demonstrate a witness testifying at trial is not being truthful. Trial testimony on a given question may vary from how the question was answered during the deposition. A lawyer may point out these discrepancies to call the witness’ credibility into question.
Witnesses must be prepared to answer questions for a potential period of several hours. During this time, the attorneys may object to the form of each others’ questions.
Having received adequate rest the night before is key to adequate preparation. If a witness is poorly prepared, the witness may answer questions by giving unhelpful information or too much information.
Your client’s deposition is opposing counsel’s opportunity to gather information and evidence to prepare their case and determine any opportunities to narrow the issues at trial. However, this does not mean that opposing counsel gets to browbeat and bully your client. Don’t be afraid to stop the deposition and seek court intervention, if you’ve taken reasonable and appropriate measures to prevent opposing counsel from badgering your client.
You cannot wait until the day before the deposition to prepare your client, especially if this is your client’s first time being deposed or your client has been asked to produce documents at the deposition.
One provision of the stipulation is to relieve the court reporter of his or her duty under statute, which normally requires the court reporter to retain the original transcript for a certain period of time before delivering it sealed, together with any corrections made by the deponent, to the noticing attorney. (See: CCP §2025.550.) Kern County has specifically prohibited the use of the So Cal Stip. Whether or not other counties will follow suit is still unknown. However, it is becoming more common for court reporters to refuse to accept the stipulation, so be prepared should this occur.
Plan to spend at least one hour meeting with your client to: (1) explain the general deposition process and structure, (2) review the relevant issues and facts of the case to which he or she is anticipated to testify, and (3) ensure you have answered all of his or her questions about the process.
This means that the court reporter will retain the original copy of the transcript during the time frame allotted for your client’s review. Once this time frame expires, the original transcript, with your client’s changes, will be delivered in a sealed envelope by the court reporter to the noticing attorney.
Improper form (i.e., ambiguous, uncertain, compound, calls for narrative, calls for speculation, argumentative, leading); and
Your client must still answer the question asked after you state your objection, unless the objection is based on privilege or work product. You cannot instruct your client not to answer a question for any other reason.
The defense lawyer must have a good faith basis to ask the question.
That booklet is called a transcript. That's your deposition transcript. In legal circles a deposition is also known as an examination before trial. When you bring a lawsuit, you put your medical condition in issue.
Medical malpractice law is a fascinating area of law. It is technical. It is highly specialized and requires a great deal of knowledge of medicine as well as a high degree of trial skill. In this lecture, which was designed to teach lawyers who practice in other areas of law, what they need to know about medical malpractice law in New York. Lawyers across the country
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When you bring a lawsuit the defense lawyer has a chance to ask you questions.
The stenographer is there to record all of the questions you are asked and all of the answers you give. Those questions and answers are transcribed and put into a booklet.
That means the defense is entitled to learn about you and your injury. They do this through a process called 'discovery'. What a trend-setting name. Discovery allows the defense lawyer to get copies of your medical records.
(Find out the specific documents reviewed, places visited and persons met with by the witness. This will show you what the witness or adverse party perceived as either their weakest or their most important topics, and also may lead to evidence you did not know existed.)
(Felony convictions and any convictions for moral turpitude are usually admissible for impeachment. Because this question may lead to admissible evidence, this question is a proper discovery question, even if the fact of an arrest is not admissible at trial. Incidentally, because this question is not expected, it shakes the adverse witness’s composure.)
Inform them that there is nothing they can say to help their case or to convince defense counsel that their claim is meritorious. They must not answer questions rapidly, as though it were a verbal tennis match. They must pause before answering to give you time to interpose an objection. Tell them that an objection can be a warning sign alerting them to a trick question or a problem area of the case.
The defense attorney (and perhaps the adjuster) will get to take the measure of your client for the first time in deposition. How your client presents at a deposition will tell an experienced defense lawyer a lot about how a trial will go. Since you never get a second chance to make a first impression, you want to do as much as you can ...
Typical defects to look for include: the notice is untimely; the deposition is set at an improper venue; and objections lie as to documents requested to be produced. Remember a deposition notice with request for documents is a second bite at the apple of document production. You may have properly objected to certain documents in a Request for Production of documents. You may waive that objection at the deposition. An RFP and a depo notice with RFP are two separate procedures; using one does not foreclose using the other. ( Carter v. Sup.Ct. (CSAA Inter-Insurance Bureau) (1990) 218 Cal.App.3d 994, 997).
Don Keenan (and David Ball) in Reptile suggests a minimum of three full days of deposition preparation with your client. Given the type of cases Mr. Keenan’s office takes to trial, that is sound advice. For the average personal-injury case, three days of preparation is impractical. Most attorneys will have to tailor the amount of time spent with their client; the more serious the injuries and difficult the case, the more time is needed.
The main proper substantive objections are privileged communications and attorney work product. Be careful that you do not waive the privilege and work product objections. The can be waived if a timely objection is not made. (Code Civ. Proc., § 2025.460 (a); International Ins. Co. v. Montrose Chemical Corp. of Calif. (1991) 231 Cal.App.3d 1367, 1373.)
For the average personal-injury case, three days of preparation is impractical. Most attorneys will have to tailor the amount of time spent with their client; the more serious the injuries and difficult the case, the more time is needed.
When another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsel’s agreement.
There are many factors that go into finding the right civil deposition attorney like education, experience, and any history of misconduct. That's why LegalMatch streamlined the entire process so you can find out everything you need to know to make the right decision for you.
A civil deposition is part of the discovery process in civil litigation. A deposition is basically a question-and-answer session between the attorney representing one of the parties in a lawsuit, and a witness who is believed to have information relevant to the lawsuit.
Depositions are extremely useful tools for gathering evidence, because they allow a witness' testimony to be entered into the record, under oath, without taking up valuable time in the courtroom.
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Don't let tension impact your statements. When being verbally confronted during a deposition, you may be tempted to blurt out a statement you may later regret. "Do not let the opposing attorney get you rattled by intimidation.
Although you may be tempted to confront a hostile attorney by stating "You seem angry," the smartest response is to remain calm and answer the questions, says Eberhart. "The attorney on the opposing side will attempt to use whatever they can, to get you to answer a question the way they want you to," she says.
There may be state specific rules, but on a general basis, the opposing attorney can't refuse you a break, says Eberhart. "You can always say 'I need to use the restroom,' or 'I'm tired, I need a break,'" she says.
If you say something you regret, such as an outburst made in frustration, you can make a correction on the record, or you can change the transcript at a later date when you review it. "Both of these methods can be commented upon by opposing counsel at time of trial if they so desire. So the best policy is to think out all your answers and not be forced into making corrections," says Lawrence.
It is more damaging to the case to correct a statement after the deposition is over, says Eberhart. "If you realize that what you said may have been misconstrued, just tell the attorney you want to clarify a statement you made that may be confusing or not correct. It is better if you do this while you are still in the deposition," she says.