Depositions can, and do, win or lose cases. Consequently, it is of utmost importance that you give depositions (sometimes also referred to as examinations before trial, or EBTs) your full attention. These observations are equally valid for the witnesses produced by the plaintiff(s) as well as by the defendant(s). This article will highlight the process of preparing for a deposition, while next month’s article will discuss how to attend a deposition as a witness.

The first issue is determining who should be produced for the deposition. Just as every witness is different, each deposition is different. The examining party has the option of specifically naming the individual(s) to be deposed or, in the alternative, requesting that your company produce a witness with requisite knowledge of the facts and events relating to the dispute. Accordingly, in the event that the examining party pursues the latter alternative you should identify that individual, or individuals; however, you should propose that only one individual be produced and deposed (with the understanding that another witness will be produced in the event that the testimony of the first witness was not complete). This ensures that your story remains clean and clear and will not be clouded by the testimony of another individual; without coaching, it is nearly impossible for two individuals to provide precisely the same answers to the same questions. Accordingly, by having just one individual subject to examination we eliminate the possibility of contradictory or confusing testimony.

The individual selected to be deposed should be thoroughly knowledgeable of the underlying facts and events, as well as the materials that it has produced to the other party during discovery. Indeed, the person to be produced can, and should, be the individual responsible for collecting the materials that were produced to the other party in response to a request for production of documents. There are few instances where a witness’ professed lack of familiarity with the documents produced by his employer does not open the door to a request to examine other witnesses or, in the alternative, an application to the court to require the company to produce a witness who is familiar with the documents produced. Generally, a witness’ total lack of familiarity with the facts, events, or documents produced by his employer only serves to delay the discovery process (not always a bad thing) and increases the cost of litigation. From the forgoing, it is understandable the individual(s) to be produced for examination will be working closely with the company attorney throughout the discovery process.

In conclusion, your testimony is important to the litigation; that is why your adversary wishes to depose you. The adversary is looking for information from which it can build its case, and it needs your help—through document production and deposition testimony—to succeed.

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