Depositions are becoming more and more of a rarely used discovery tool; however, I have always found that Depositions are extremely useful, especially when a case appears to be moving towards a contested trial. Depositions are an opportunity to have the other party or other important persons relative to the case compelled to come in, typically to the attorney’s office who schedules the Deposition, be placed under oath by a Court Reporter and then asked questions that the party is required to answer. Typically the only objections that are allowed to the Deposition questions being by the attorney are those that would object to information that is normally privileged or confidential. As such, it is an opportunity to solicit from the other party what are called “admissions”. Admissions are statements by the other party that are provided under oath that can be used in a contested trial setting before a Judge. Typically I have seen them used when a party on the witness stand changes their testimony or provides an answer that is contradictory to the answer that they gave during their Deposition. If this happens during the trial, in my experience, it demonstrates to the Judge that the credibility of the person testifying could possibly be questioned. That is, if the witnesses story continues to change, perhaps their credibility is lacking.
Additionally, it affords an opportunity for the attorney to ask important and relevant questions about information pertinent to the case. For instance, in a custody case, it allows the attorney to ask questions about the parent’s past involvement with the children, mental and physical health history, etc. In a spousal maintenance or child support case, it allows questions relative to that person’s income, monthly expenses, health and dental insurance costs, day care costs, etc.
Furthermore, although the cost of the Deposition needs to be considered before it is taken, I have typically found that taking a Deposition may end up being more inexpensive then conducting written formal discovery. Written formal discovery is allowed under the Rules of Civil Procedure and allows an attorney to request what are called Interrogatories, or questions, to the other party and a written Request for Production of Documents. In my experience, once I have sent requests for written discovery, I am usually then served with requests for written discovery from the other attorney. This is where the costs become extremely expensive. Instead, in conducting a Deposition, it affords the attorney to ask follow-up questions that may not be asked in the written discovery, ask for documents to be provided at the Deposition, and also, in some cases, allows a tool for negotiation or attempted settlement of the case. In my experience, oftentimes once a Deposition is taken, or even sometimes during the Deposition, attorneys begin talking and it affords an opportunity to attempt to try to settle the case.
Depositions, although sometimes rarely used, still are a very effective tool in litigation and one in which attorneys may want to seriously consider using depending on the factual circumstances and issues involved in the case.
