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Depositions: 6 Things to Know – including one little secret

Depositions are something that I know quite a bit about. I have been in hundreds of them. How many exactly? I lost count long ago.


Because of the type of work that I did my second year out of law school, I have been in more depositions than most divorce attorneys. And depositions were longer back then. So it would be hard to find a family law attorney that has spent more hours in deposition than me – and that's nothing to brag about.


Depositions can be a pain. They can be tedious. They can be exciting – fights have been known to break out. And they can be beneficial.


The first thing to know about depositions is this:  You can't win your case in a deposition, but you can darn sure lose it.


Because they can be so important, it's a good idea for everyone involved in any type of case to know these six things about depositions:


1.         What is a deposition?


A deposition is the giving of sworn testimony – meaning answering questions after being sworn to tell the truth. As most people are told at the beginning of the deposition, "it is the legal equivalent of testifying in court."


A deposition usually has the person giving the testimony, known as the deponent, and at least two attorneys, and a court reporter present. But there may also be all parties to the case and their spouses, expert witnesses, paralegals, a videographer, and when needed, a translator.


Usually, a deposition is given in the office of one of the attorneys, but they can be done in a hospital room, a hotel conference room, a jury room at a courthouse, or a parking lot. They can be done with everyone in the same place or with no one in the same place – although typically at least the court reporter and the deponent would be in the same place.


2.         How long is a deposition?


In the "good ole days," depositions could last as long as the attorney wanted to keep asking questions. Back in the early nineties, it was common for depositions to last ten to twelve hours, often stretching out over more than one day. In 1989, I was in a deposition that lasted three days, and at my first firm, we were taught that depositions should never be concluded in one day.


In 1999, the rules were amended. Now depositions are not supposed to last more than six hours unless the court has authorized a longer time. But, that's six hours of question and answer time. If the lawyers argue for 30 minutes about something, that doesn't count. If you take a 10-minute break every hour to talk to your lawyer and another 10-minute break every hour to use the restroom and walk around, that doesn't count. And the lunch break does not count either. So, even with the new shorter time limits, the total time commitment for a deposition can still be eight to ten hours.


3.         Why is a deposition done?


Basically, a deposition is done to find out what a person knows and what they don't know. Getting a deponent to commit that he or she does not know something can be as valuable as finding out something that they do.


Sometimes, a deponent will think they are getting away with something by saying "I don't know" to every question. In reality, they are helping the other side by ensuring that they can't dispute facts at trial since they claim not to know what the truth is.


A deposition can also be done to have testimony available in court when it is known that the deponent won't be able to come to court. Unavailability may be due to sickness, inability to travel, unwillingness to go, work schedule, etc.


And frankly, sometimes depositions are done at least in part to harass a deponent or a party to the case.


The question is often asked, "Can't I just have my witnesses submit a letter or statement?" The answer is no. Letters and statements are almost always inadmissible hearsay. Whereas a deposition is not.


4.         What rules govern a deposition?


A deposition is not a conversation. It is question and answer, just as in court. The Texas Rules of Civil Procedure, the Texas Rules of Evidence, and any Local Rules of Court govern depositions. They dictate things like what type of notice must be given, how long the deposition can last, and who can attend.


Ignoring a subpoena for a deposition can lead to a finding of contempt, which can lead to jail. And a "Notice of Deposition" to a party of the case, sent to the party's attorney, is the legal equivalent of a subpoena.


5.         What decisions do you need to make?


If you are served with a Notice or subpoena, you need to quickly decide whether you need to object to the time and place of the deposition. If you object quickly enough and correctly, you may be able to stop the deposition from going forward, at least until the Judge rules on your objection. If you don't, the deponent may be compelled to attend, under penalty of contempt.


In deciding the strategy of your case, you need to determine who you want to depose, if anyone. Then you need to think about how you want those witnesses deposed. Do you want to do it in your lawyer's office, where you control the exterior noise, the air conditioning, and the overall comfort level? Or do you want to offer to take the other party's deposition in his or her lawyer's office? You can usually come to an agreement that each party's deposition will be taken in his or her lawyer's office.


Do you want to agree to do short depositions and try to do more than one per day or do you want to have the ability to go all day, if needed?


Do you want the deposition videoed so that the deponent's reactions can be seen by a Judge or Jury later or do you just want a court reporter?


Or do you want to do the deposition on a tight budget? If so, you can do what is referred to as a non-stenographic deposition. A non-steno deposition can be done with nothing more than a smartphone.


6.         So, what's the little secret?


As I mentioned at the outset, I've done countless depositions over the years, but most of those were when I worked at a firm that did nothing but serious personal injury work. I was in more depositions during that year than during the rest of my career combined. Why? Because in Divorce and Custody work, the reality is that far more depositions get threatened than ever get taken. 


In a divorce, it is well known that you can get a lot of mileage out of threatening to take the deposition of someone's girlfriend or boyfriend or boss or preacher. Lawyers can even go so far as to notice everyone, subpoena the witness, and set the whole thing up and then cancel at the last minute. There is seldom a penalty for doing that sort of thing.


So, talk to your lawyer about depositions. Talk about the real value that you will get from taking them and from threatening them. And if you are threatened with one, take a deep breath and realize that there is a good chance that it won't happen. And even if it does, all you will be doing is sitting in a chair and answering questions.


I've taken depositions, I've defended depositions, and I've been deposed. Everyone in the room has some anxiety about something. 


Don't let the thought of depositions get you overly stressed. Early on in your case, relax and talk to your attorney about all of this. And while you're at it, ask him or her about all the little deposition secrets that I'm not about to put down here in writing.


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