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There are a number of tricks that Tricks Lawyers use in depositions to their advantage. They include raising objections, talking about items outside the purview of discovery, bringing up the past, discussing a situation, requesting a break, and refusing to answer a question.
These tricks can make it difficult for you to defend a deposition, so it’s important to know how to respond. Here are some tips to help you do that!
1. Raise Objections
A deposition is an important step in a legal case. It allows a witness to be interviewed under oath and can be recorded by a court reporter for use as evidence during a trial.
During a deposition, a lawyer may raise objections to prevent the witness from providing misleading or confusing testimony. Proper objections may be made on the grounds of form, relevancy, or privilege.
The Federal Rules of Civil Procedure allow three types of proper deposition objections. Knowing when and how to use them is critical.
2. Talk About Privileged Information
If you’re a patient, for instance, and an attorney asks you whether certain information about your situation is privileged, it may be a good idea to answer the question. However, be careful, because this conversation could derail your line of questioning.
In most jurisdictions, a communication is considered privileged if it is between two parties who have a legally protected, private relationship. This includes attorney-client conversations, communication between doctors and patients, communications between accountants and clients, and communication between reporters and sources.
3. Bring Up the Past
The process of taking sworn, out-of-court oral testimony for use in litigation or discovery is known as a deposition. In the United States, it is often conducted by Personal lawyers without the involvement of a judge.
Many lawyers will try to make the deposition less threatening and relaxing, such as making jokes or chatting about personal issues. They will usually do this with the intention of causing you to answer or comment in a way that will be damaging to your case. This can be done to promote a settlement or narrow down the issues that should be brought to trial.
4. Discuss a Situation
In depositions, it’s a good idea to try and limit the record to key testimony from the witness and important discussions between attorneys. However, this is not always possible and some discussions may get into the deposition record if they don’t happen “off of the record” during the session.
Similarly, it’s also a good idea to try and answer questions as directly as possible without giving away too much information. It’s also a good idea to speak slowly and methodically so that you don’t miss anything important that the court reporter may be recording.
5. Request a Break
A break is a smart way to change the pace of a deposition when it isn’t going your way or to give yourself a little time to research a rule or issue. Lawyers often use requests for breaks to rehabilitate or coach their clients, but this practice may not be ethical.
The law is unclear about whether conversations between attorneys and their clients during deposition breaks are privileged. The courts vary in their interpretation of Hall, a case that addressed this question.
6. Request Additional Information
Lawyers use depositions to get the information they need and then present it in court. It can promote settlement, narrow down the issues, or help a case move along faster.
A deposition typically involves the parties, witnesses and their lawyers. Sometimes paralegals, investigators or even expert witnesses are also present.
The information given in a deposition is then transcribed and sent to both sides in written form. This allows opposing counsel to interpret the material in light of their own objectives.
7. Refuse to Answer a Question
Most lawyers have experienced the obstructive behavior of their adversaries during depositions. This often includes directing the witness not to answer a question or speaking objections.
However, a new rule under the New York Rules of Civil Procedure is intended to stop this behavior. It prohibits attorneys from making a speaking objection to a question and suggesting an answer, unless the objection is stated succinctly and accompanied by a clear statement as to any defect in form or other basis of error or irregularity.
This rule also applies to nonparties who purport to instruct a witness not to answer. Its limitation should be applied to all instructions that a witness not answer a question, whether made by a party or nonparty.