Do you remember your first court appearance as an attorney? If you were nervous, had questions, and wanted to understand what would happen, you?re a lot like a first-time deponent.
It can be quite intimidating entering a room with attorney(s) and a Phoenix court reporter. To get the best from your deponent, prepare them prior to deposition day.
Tell them why they have been called.
Begin by explaining they have been called as part of the discovery process and they are a potential witness. In Arizona, they are allowed to be called only once for a maximum of four hours unless agreed to by parties or ordered by the court. Let them know if you expect it to be a four hour or longer event so they can properly prepare.
If they?re called as an expert witness for the plaintiff as part of a pre-trial motion, and the testimony doesn?t support the plaintiff?s claims, the defense can use the deposition to get out on summary judgment and avoid a full trial. That?s why the next point is so important.
Tell the truth.
While a deposition takes place outside the courtroom, it is important to tell the truth as they know it. Your first-time deponent should be reminded that they are under oath and need to tell the truth. If not, their deposition could be used against them at trial. In cases where an attorney suspects lying, they may even opt to hire a legal videographer. A lying witness on video plays differently with a jury than simply reading a transcript.
Ask for clarification.
If the deponent is unsure of what they?re being asked, they need to know it is okay to ask for clarification. If they can answer with a simple yes or no, they should do so. If asked, ?Can you tell me what time that event took place?? Reply yes or no. It?s not that you want them to be a hostile witness, they have to answer exactly what they?re asked. As an attorney, rephrase the question to, ?What time did the event take place?? Then the witness can provide a more detailed answer.
It?s okay if you don?t know the answer.?
The discovery process is just that – a time to discover and understand what witnesses know about the event in question. Advise the deponent that, ?I don?t know,? is a perfectly acceptable answer as long as it is the truth.
Being a first-time deponent can be intimidating but with the right guidance and listening to what is asked, they can give an accurate account of events to best of their recollection.