Having a plan for pre-trial discovery is one way to control the risk factors in litigation. Since the tools of pre-trial discovery could be particularly damaging for a small business owner, he or she should be prepared.
Defendants frequently make mistakes when verbally answering questions during a deposition. In contrast, similar errors are not common when submitting written answers to interrogatories. Because a party must, more or less, spontaneously answer questions during a deposition, there is the distinct possibility that the deposed party will make a damaging statement.
In contrast, with interrogatories, a party usually has 30 days to return written answers. Thus, in this case, the party can carefully craft answers, going through many different drafts, until a final and favorable version is derived.
A deposition involves a face-to-face meeting, in which the opposing attorney will ask verbal questions, and the deposed party will give answers, after taking an oath that the responses will be truthful. A stenographer will record the proceeding, so that a written transcript can be made.
Usually, the deposition will take place at the opposing attorney's office. The nature of the face-to-face questioning and the location of the deposition can unnerve the deposed party. Most importantly, of course, the deposed party will not have 30 days to draft the responses. When asked a question, he will be required, more or less, to provide an immediate verbal answer. While the deposed party's attorney also will attend the deposition, he cannot answer the questions, at least not directly.
In reality, the deposed party's attorney should, in effect, be answering every question. Adequate preparation is the key to making a deposition neutral, or even turning around its effect, so that the evidence it produces works against the party conducting the deposition.
Effective preparation requires that the deposed party anticipate every question that will be asked in the deposition. A skilled attorney should be able to do this, as an attorney should be aware of all of the legal issues and facts that must be proved in the case. The deposed party's attorney should ask these questions of his client, well in advance of the deposition, and help the party craft his answers. Note that, while a party cannot lie in a deposition, choice of wording can have significant implications.
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Specifically, a deposed party should:
- Anticipate every question that will be asked and craft narrow answers to these questions in advance of the deposition. This really is not a difficult task. For example, in an automobile accident case, the plaintiff's attorney will attempt, through the deposition, to prove the deposed party was negligent. Thus, he will ask questions that may prove carelessness on the part of the deposed party (e.g., the speed of his vehicle, the distance between his vehicle and the other driver's vehicle, his activities at the time the accident, etc.). The deposed party also should be prepared to explain how he knows these facts (see below).
- Rehearse and craft answers in the same way that rough drafts of written answers would be used, if the party were faced with interrogatories. Essentially, then, the deposed party should treat the deposition no differently than if it were a set of interrogatories. This practice defeats what otherwise represents the main advantage of the deposition to the other party--that in the absence of preparation, the deposed party usually will provide spontaneous and, thus, damaging statements.
For example, there is a significant difference between a deposed party saying he glanced at his speedometer "just before the accident" (which implies he caused the accident due to his inattention to the road) and saying he knew he wasn't speeding because he "glanced at his speedometer a block before the accident." Note the importance of the exact choice of wording. If the deposed party says he glanced at his speedometer "several blocks" before the accident, this fact may be irrelevant because during the intervening period the speed of his vehicle may have changed. Wording is everything.
Note, too, that preparation requires a general understanding of the facts surrounding the case. A deposed party who guesses that the speed of his vehicle was about 40 m.p.h. probably should have guessed another number, if the speed limit in the area was 25 m.p.h.
In short, nothing in a deposition should be spontaneous.
- Do not volunteer answers to questions that are not asked when these answers would damage the deposed party's case. Thus, a party who caused an automobile accident does not have to volunteer that he was not wearing his prescription glasses, if this question is not asked.
- Do volunteer answers to questions that are not asked, when these answers will help the deposed party's case. Thus, if the deposed party saw that the other party had no brake lights or failed to use a turn signal, these facts should be worked into answers, even when questions do not directly address these issues. Through this technique, a deposed party actually can take an aggressive or offensive stand in a deposition, and thus turn the deposition into a weapon that can be used against the other party. Preparation, again, is the key, if this is to be done.
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