The Importance of the Deposition Process in Civil Lawsuits

Civil litigation is a complex process that includes several stages. One of the most important parts of a lawsuit is the pre-trial discovery phase. Discovery typically occurs several weeks or even months ahead of the trial, and during this time, the plaintiff seeks to gain information and evidence as they prepare for trial. Depositions are an essential part of the discovery process, because they allow the opposing counsel to obtain important facts that may help their case.

The Role of Depositions in Litigation

A deposition is a foundational tool in the legal process, serving as a formal meeting where a person’s sworn testimony is recorded outside of a courtroom. It is a question-and-answer session where an attorney for one side asks questions of a witness. This witness is someone believed to have relevant information about the facts of the case.

The oral testimony is meticulously recorded by a court reporter. This is later converted into a written transcript. This official document can then be used in various ways during the legal proceedings, including at trial. 

Depositions are a central component of the discovery phase of a lawsuit, a period dedicated to gathering information from all parties to a dispute. They are critical for uncovering and preserving facts, evaluating the strengths and weaknesses of a case, and preparing for the possibility of a trial.

The Structure of a Deposition

For a deposition to take place, the attorney for the opposing side must provide reasonable notice to the witnesses they wish to question. This is typically done through a formal document known as a subpoena, which commands the person to appear at a particular time and location to give their testimony. It is important that this notice is fair and gives the person enough time to prepare.

The opposing side can file motions to challenge or quash a subpoena based on several common objections. For instance, a subpoena might be challenged if it does not allow enough time to respond or if it requires the person to travel an unreasonable distance, such as more than 100 miles. Another objection might involve the “apex doctrine,” which can protect high-ranking corporate officials from being deposed if they lack unique, direct knowledge of the facts.

Depositions can be held in a variety of places. They are often conducted at the law office of the attorneys who requested the testimony or at a court reporter’s office. A court reporter must be present to accurately record everything that is said. This ensures that a complete and official written record of the testimony is created.

The party that asks for the deposition is responsible for paying all the costs associated with the court reporter. In larger or more complex cases, the requesting party may be willing to travel to the witness’s location to make the process more convenient. For example, in the lawsuit of West Virginia vs. McKesson from 2016, attorneys for the state of West Virginia were scheduled to travel to San Francisco to question five executives from the company at their corporate headquarters.

The Purpose of a Deposition

There are many reasons why depositions are so important in a lawsuit. They allow the party requesting the testimony to accomplish several key objectives. First, they can obtain critical facts about the case, such as how and when an injury happened and who is accountable. This helps to fill in the gaps in a legal team’s understanding of the event.

Second, depositions help legal teams to assess the overall strengths and weaknesses of their own case. By listening to what a key person says, attorneys can better understand what arguments they need to prepare for and what information they can use to their advantage.

Depositions are also a chance to pinpoint the specific knowledge that a person holds. This helps to prevent surprises later on in the trial. By hearing what a person is likely to say, attorneys can better plan their strategy.

Furthermore, depositions are helpful in evaluating the credibility of the person and their testimony. If a witness says one thing during their deposition and something different when they testify at trial, the inconsistency could raise questions about their truthfulness. This can be a very important factor for the judge or jury to consider.

Who Can Be Deposed?

Virtually any person with knowledge of the facts of a case can be deposed. This includes defendants in a lawsuit, employees or former employees of a business that is being sued, and other third-party witnesses. High-level executives, officers, managers, and agents of a business can be compelled to appear for a deposition by receiving a formal notice.

Along with their testimony, they may also be required to produce documents, electronic data, and other relevant information. If the person to be questioned is a former employee, they must be personally served with a subpoena to ensure they receive proper notice.

For instance, if a business is a defendant in a product liability lawsuit, attorneys for the person bringing the suit will typically want to question both current and former employees who were directly involved in the creation or distribution of the product. 

These individuals are likely to have direct knowledge of what happened and how the product may have caused harm to consumers. It is also common for the plaintiff’s attorneys to seek the testimony of top-level executives. This helps them understand the extent of the executives’ involvement and what they knew about the product.

The West Virginia vs. McKesson case is a good example. The lawsuit focuses on the extensive distribution of opioids, which is believed to be a major cause of the opioid crisis in the state. In this case, the state’s attorneys arranged to question McKesson’s local sales representative as well as five of the company’s top executives, including the CEO. The lawyers hoped to learn what the company’s process was for flagging large or unusual orders from pharmacies, if sales incentives were given for increased sales of opioids, and if the company was aware of any criminal investigations involving the pharmacies they supplied. While some of these questions could be answered by the local sales representative, it was essential to speak with top executives to get a complete picture of the company’s culture, policies, and practices.

The Role of the Attorney and the Witness

Depositions require careful preparation from both the legal team and the witness. For the attorney requesting the deposition, the preparation involves putting together a list of detailed questions designed to uncover all relevant information. 

This takes a deep understanding of the facts and the legal issues at play. The attorney must be ready to think on their feet, adapting their questions based on the answers they receive. They also prepare for potential objections from the opposing counsel.

For the witness, preparation is just as important. A witness is often prepared by their own legal counsel before the deposition. This helps the person understand what to expect and how to respond to questions in a clear and truthful manner. 

The preparation includes a review of important documents and facts related to the case. It also covers how to handle questions that are confusing or difficult. The witness learns to listen carefully to each question and to provide straightforward answers, without volunteering additional information that is not asked for.

The Transcript and Its Significance

The final product of a deposition is the written transcript. This document is a word-for-word record of every question asked and every answer given during the session. The court reporter works to ensure that the transcript is precise and accurate.

Once the transcript is prepared, it becomes a formal record that can be used throughout the legal case. The transcript is very important for several reasons. It can be used as a reference during motion practice, a phase where legal teams ask the court to make rulings on certain issues. It is also a key tool during settlement discussions, as it provides a clear record of the facts that have been established.

Most importantly, the transcript can be used at trial. An attorney can read from the transcript to highlight a person’s prior testimony, especially if their trial testimony differs from what they said at the deposition. 

This is a common legal tactic called impeachment, which is used to question the reliability of the person’s memory or testimony. By having a precise, written record, the legal team can show the court any inconsistencies, which may have a major effect on the outcome of the case.

Strategic Considerations and Legal Framework

Depositions are a central part of the discovery process, a period governed by the rules of civil procedure. These rules dictate the scope and format of depositions and other methods of gathering information. Legal teams use these rules to their advantage, planning their depositions to maximize the information they gain.

The timing of a deposition can be a key strategic decision. For instance, questioning a witness early in a case can help a legal team understand the facts before developing their full legal argument. The decision of who to question, and in what order, is also carefully considered. These strategic choices can influence the entire direction of the case.

The information gathered from a deposition is not just for use at trial. It helps legal teams to assess the potential for a settlement. By understanding the strengths and weaknesses of both sides’ cases, they can make informed decisions about whether to continue with litigation or to try to resolve the dispute outside of a courtroom. The facts revealed during depositions can also uncover new areas for investigation, leading to requests for more documents or the questioning of additional witnesses.

The Impact on the Legal Case

In the end, depositions are a powerful way to prepare for a lawsuit. The information gathered shapes the entire litigation plan. It is more than just collecting facts; it is about building a complete picture of the events and the people involved.

By hearing directly from witnesses and having a written record of their words, legal teams can make informed decisions, build strong arguments, and prepare for any challenges that may arise. They are a crucial component of the legal system that helps ensure that all parties have a fair opportunity to present their case.

When Can a Witness be Shielded from a Deposition?

Depositions can be stressful and time-consuming for a deponent, so naturally, most witnesses are not overly enthusiastic about being deposed. For an average witness, there is usually no way out of a deposition once they have been served notice. On the other hand, those with “important” positions often try to invoke the apex doctrine to be excused from this process.

Under the apex doctrine, a CEO or another top-level executive (i.e., someone who is at the “apex” of an organization) may try to claim that they cannot be deposed because they have no unique, first-hand knowledge of the facts of the case, the deposition will take up too much of their time, and there are other ways for the plaintiff to obtain the information they are seeking. This doctrine presumes that deposing a high-level executive is an unnecessary and abusive tactic designed to harass the defendant and force them into a settlement. Courts have been split on when the apex doctrine is appropriate, and it is typically decided on a case-by-case basis.

In the case of West Virginia vs. McKesson, lawyers for McKesson recently invoked the principles of the apex doctrine in a motion filed in Boone County Circuit Court to shield their CEO John Hammergren from being deposed. Hammergren stated in a sworn affidavit that he has “no first-hand knowledge” of the company’s prescription opioid shipments to West Virginia pharmacies, and that he does not manage their prescription drug order tracking system. The company lawyers also argued that since McKesson is facing 500 similar opioid-related lawsuits, being deposed in this case would “open the door” to numerous other depositions, which would take up far too much of his time.

What Happens after a Deposition?

After the deposition is completed, a transcript is prepared by the court reporter/stenographer.  Once the transcript is produced, copies are eventually sent to each side. The parties are then able to review the document for any inaccuracies. If the court reporter misquoted the deponent, or the deponent misstated something, this is the time to try to correct the record.

As mentioned previously, a deposition is not a court hearing, it is part of the discovery process.  After discovery has been completed, this is when a court date is usually set. The deposition, which is taken under oath, may be used as evidence at trial, and the deponent may be confronted by the opposing legal counsel about statements made during the deposition.

It is important to note that many civil lawsuits do not end up at trial. In many cases, settlement talks begin after discovery is complete. Parties may refer to the deposition during these talks as they negotiate and advocate for their position. Oftentimes, a settlement ends up being reached that allows the parties to avoid litigation. But if the case makes it to trial and the deponent takes the witness stand, he/she should be ready to answer questions about statements made during the deposition.

In the end, a deposition is an extremely valuable discovery tool, helping attorneys gather information (testimony, evidence, data) that will be used to structure their case as they prepare for trial.