Fun with Discovery: How discovery works in Wisconsin - Depositions
Depositions in Wisconsin
Depositions, in most cases, are oral examinations of people related to a case. These questioning sessions can involve anyone, whether or not they are a party to the lawsuit. As one well known litigator has stated, “a deposition is is the accumulation of information, slowly.” What he means is that depositions require the questioning attorney to inquire, in great depth, into every potential detail of the matters concerning a lawsuit.
From a party’s, or any deponent’s, standpoint, one can see how stressful and tiring depositions often are, not including preparation for the event itself. It’s no wonder parties who are familiar with lawsuits hate depositions and why those being prepared for one develop a high sense of anxiety.
From the standpoint of a lawyer, depositions are incredibly useful for a number of reasons. One is that human beings lie, do not remember events/facts with precision, and just plain forget things. Naturally, these flaws affect either party, but a thorough probing by an attorney can clarify facts within reasonable certainty. Quality inquiries by a deposing attorney can also reveal documents, people, or things the deposing party did not know about prior to the deposition. Humans also like to brag in a variety of ways and depositions bring the braggart out of a lot of people - those who know the ins and outs of the matter at issue and those who love gossip. On the other hand, people do like to be helpful and this quality can often lead to answers that extend far beyond the question asked. Lawyers are also better able to cater questions to the individual being deposed because they can gauge responsiveness and truthfulness by the deponent. A final and incredibly powerful application of a deposition is its usage at trial. A deposition can show that a person’s testimony is a lie at worst (and a mistake at best) or can take the place of a witness who is not in the courtroom.
The primary downside of depositions is that they are extremely costly. Costs are tied into time invested in determining who to depose, preparation and research for the actual deposition, possible rental of a place in which to take the deposition, fee for the court reporters, and the attorney fees for taking the deposition itself.
As previously stated, almost anyone is fair game to be deposed in a lawsuit, even if that person lacks any substantive or evidentiary knowledge - generally, the deposing party can depose whomever they wish (although there are some limited exceptions). There is no express limit on the number of depositions a party may take, but often attorneys will set an agreed-upon number, in some cases ten (federal limits a party to ten depositions), but more may be allowed - as always, the ideal number depends on the facts of the case, the strategy employed by the party’s attorneys, and an agreement between parties. The length of time a deposition might consume is not limited, although, as with the number of depositions, attorneys can agree on a limit. A common length is seven hours, the limit at the federal level, and no more than one day.
The location of the deposition is influenced by the person being deposed. If the deponent is a party or a non-party (a third person), a rough rule is that he or she can be deposed within 100 miles of his or her respective residence or place of employment. The court can modify this rule for the sake of convenience, which can be very helpful for busy businesses and business owners. Since one of the goals of discovery is to limit the need for a judge, the parties can also agree to any location they find suitable for a deposition.
Sometimes, a deposition may be used for the wrong reasons, such as embarrassment of a deponent or to specifically hurt the deponent financially. In those cases, a court can issue a protective order to protect the deponent from such inappropriate goals. The court also has power to punish, economically, a party engaged in such tactics. Contrarily, if a deponent is not being cooperative during the deposition, the deposing attorney can compel an answer from the deponent through a court order. The lesson here is to play by the rules and keep the judge out of discovery.
Now we arrive at strategy. While the attorney will handle the deposition tactics, such as whether she is trying to squeeze out a needed fact from the deponent that day, using the deposition evaluate the credibility of the deponent (in other words, is that person telling various versions of his story), or your attorney may suspect that the deponent that day will skip out on the trial and so she wants to preserve the deponent’s testimony (so she can use it later in trial) - this list is far from exhaustive. The possibilities are limited only to your attorney’s imagination and the facts of the case.
During questioning, you may be asked about documents or tangible things. Ask to see them, if possible, before answering any questions. You want to be sure you are clear about the question being asked and any documents or things relating to the question.
There are common “techniques” used during depositions about which your attorney will inform you. Formatting of questions is a common and effective technique, especially when combined with the pace of questioning (slower = rambling, faster = pressure). Question formats are also used at trial, so it is essential that you (as a party) understand them well. Because the goal of a deposition is information acquisition, lawyers often rely on “open-ended” questions - questions that give a deponent the ability to explain themselves as much as they’d like. You might recall my comment above that depositions allow deponents to prattle on and reveal far more information than the question required. Here is where that happens, especially with people that are eager to brag about their intellect or the gossip to which they are privy.
Another format is called a “leading question.” If you’ve ever watched a television show on lawyers, you’ve heard an attorney howl to the judge about leading questions. A leading question is one that suggests the answer to the person being asked, that answer usually being favorable to the person asking. As you can see, an attorney can exercise a great deal of control over a deponent with these questions, denying the deponent the ability to weasel out of an answer. While the power of leading questions appears great, the downside is that they don’t elicit much information (the answers can be as simple as “yes” or “no”) and the general rule is that they can only be used against adverse witnesses/deponents (”adverse” meaning witnesses/deponents that are not on your side).
“Full-circle” questions are those that confirm that the attorney has sufficiently probed a matter; they bring that topic “full-circle.” For example, in a workers compensation case, an attorney might ask a witness to the incident “do you remember anything else about what Jim (the injured) did before the accident that day?” While not as impressive as leading questions, people do like to be helpful and “full-circle” questions tease out information through the desire to help. This list of formats is far from exhaustive, but it gives you a taste of the tools an attorney may use during a deposition.
Taking the deposition. While each deposition is unique, the following is usually how it goes. The reporter will get the basic case info from the attorneys and prepare the stenography setup. Once he or she is ready, the witness will be sworn in under oath. The deposing attorney will give a basic set of instructions to the deponent, usually something similar to: don’t speak over anyone else so the court reporter can get everything down; the reporter cannot record non-verbal answers, so you must always answer vocally and clearly; and if you do not understand a question, do not answer until you do understand. Sometimes the lawyer defending the deposition will “preserve objections” before the questioning begins. Ask your lawyer in advance about this for individual clarification.
During the deposition, the witnesses attorney may object to some questions. The reason for objections may vary, but understand that the quarrel is between the attorneys. Disputes over these objections can become very heated and stressful, so it is essential that you remain calm and let the lawyers sort it out. As a deponent, you are generally obligated to answer the questions asked and there are few “safe harbors” for you to hide.
As you might have sensed by now, I’m trying to tackle a HUGE topic and boil some of it down for you. There is simply no way for me to pack into one post, or ten, the ins and outs of depositions.
On a parting note, I’d like to offer a few things for potential witnesses and deponents to consider:
- Breaks are important during depositions. Take them when you find yourself feeling depleted or easily agitated.
- Listen to the question being asked. take a second and mull it over. Truthful and accurate answers are important. This practice will keep you from rambling and thus giving more information than you were asked for. It may also require you to ask opposing counsel to clarify terms and meanings that are unclear.
- Short answers are best. If a simple “yes” or “no” will suffice, so be it.
- Do not think aloud. This is akin to rambling, which is bad.
- BREATHE! If you are not breathing, you will not feel well and risk making mistakes. Breathing will help control your temper and your brain will be happy with lots of oxygen. Consider avoiding liquids other than water.
- Finally, tell the truth. You will not be able to BS opposing counsel. These folks take depositions for a living and have seen it all.
Thursday, March 6th, 2008
