California Wrongful Death Case - Discovery; Depositions

WHAT IS A DEPOSITION?
A deposition is the taking of oral testimony of a party or witness, under oath, before trial. A court reporter will be present to record the lawyer's questions and (the person who's deposition is being taken) answers. These questions and answers will later be typed in the form of a booklet. Depositions are usually taken in the conference room of the court reporter or the office of one of the Defendants. Both attorneys are present. When taking depositions, I almost always have my client present. This is due to the fact that my clients have a right to be there, and can assist me as the Deposition develops. Most importantly, people do sometimes lie under oath. If they are going to lie, I want them to do so in front of my client. Curiously, most Plaintiffs' attorneys do not have their clients present at the deposition of others. I believe this is a major mistake.

An earlier discussion of the rational for discovery bears repeating. Prior to the middle of the 20th century cases were frequently tried on the basis of mutual ignorance of the other party's allegations both by the Plaintiff and Defendant. This frequently resulted in, for instance, surprise witnesses or surprise evidence that totally changed the character of the case and unfairly prejudiced the party against whom the evidence was introduced. This was frequently referred to as "trial by ambush". The legal system was changed to provide for what is loosely referred to as "discovery". This means that both the Defendant and the Plaintiff are provided every possible opportunity, subject to very few limitations, to discover virtually every aspect of the other party's case. The rationale is that when both parties fully understand both sides of the case, settlement of the claim on fair grounds is encouraged, and, most importantly, verdicts in trials are much more likely to be based upon justice than surprise.

The following discussion assumes your deposition is being taken in a wrongful death case (although most of what is said here would apply equally to any deposition).

A deposition is something like a "fishing expedition." The opposing attorney will ask you wide-ranging questions trying to discover every aspect of the your case. This is why you should not volunteer information. Because a question is not asked you at the time of the deposition this does not mean you are precluded from putting that evidence in at time of trial. This is why it is very important not to volunteer information, but only to answer the call of the question. You must answer the question correctly. However, when you volunteer information you will develop additional avenues for the other attorney to probe. Below are listed obvious examples of how not to answer questions (admittedly some of these examples are either humorous or ridiculous but they do illustrate the point).