Depositions

[You Are Guilty]

"I don't know" is a perfectly acceptable (and sometimes quite useful) answer at a deposition. But (certain types of) objections are required to be made or else they are waived, a serious problem.

Regarding Conduct During the Deposition. An objection to the competency, relevancy, or materiality of testimony is not waived by failure to object before or during the deposition. Errors and irregularities in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be cured if promptly presented are waived unless seasonable objection thereto is made during the deposition. Objections as to the form of written questions submitted under Rule 57.04 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within ten days after service of the last questions authorized.

Presumably, opposing counsel will argue that your answers to such questions are "admissions against interest" which would then make them admissible, but it's not something your lawyer should be letting happen willy-nilly as it's an arguable point. Particularly when failing to answer puts the ball in the opposing side's court, and requires them to make a motion and seek the court's intervention:

g) Failure to Answer Questions on Deposition. If a witness fails or refuses to testify in response to questions propounded on deposition, the proponent of the question may move for an order compelling an answer. The proponent of the question may complete or adjourn the deposition examination before applying for an order. In ruling upon the motion, the court may make such protective order as it would have been empowered to make on a motion pursuant to Rule 56.01(c).

If the motion is granted, the court, after opportunity for hearing, shall require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is denied, the court, after opportunity for hearing, shall require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

If the motion is granted and if the persons ordered to respond fail to comply with the court's order, the court, upon motion and reasonable notice to the other parties and all persons affected thereby, may make such orders in regard to the failure as are just, and among others, it may take any action authorized under Rule 61.01(d).

Of course, you always take your chances that the judge will not believe it is an "improper question", but assuming he/she does, you should be fine.

The proper method of attacking attempted improper discovery is through objection rather than by not answering, but there was no abuse of discretion by trial court in refusing to impose sanctions for failure to answer a clearly improper question. State ex rel. State Highway Commission v. Pfitzinger 569 S.W.2d 335 (1978).

Sounds like you have yellow-bellied attorneys on your side.

 

[Whyte Noise]

Just to clarify something - I can ask any question I want at a deposition. So if I asked you "if it was safe to assume that you haven't stopped making beastiality videos", if you actually answered it, that's not my fault. So if you had an actual licensed attorney sitting next to you who let you answer the questions listed, you have a right to complain to the state bar. If your attorney objected and "blocked" you from answering the questions, then there is nothing amiss. That's what objections are for.

I'd love to see that transcript though.

See, questions like the one You Are Guilty just posed in this reply are where an attorney can trip you up if you aren't careful. No matter how you answer that question, you could screw yourself.

If you answer "yes", then that implies that you no longer make them, but that you did in the past. (whether you did or not)

If you answer "no", then that implies that you didn't stop making them and still are making them. (whether you ever made them in the first place or not)

It's like asking someone if they still beat their wife, no matter if they ever did or not.

It's a common tactic an attorney will use to trip you up in a depo. It's when you contradict that depo testimony when you're on the stand that brings your credibility into play.

This is why it's best to have an attorney with you in the deposition. They know the tricks of the trade.

 

[CJane]

See, questions like the one You Are Guilty just posed in this reply are where an attorney can trip you up if you aren't careful. No matter how you answer that question, you could screw yourself.

If you answer "yes", then that implies that you no longer make them, but that you did in the past. (whether you did or not)

If you answer "no", then that implies that you didn't stop making them and still are making them. (whether you ever made them in the first place or not)

And this falls into the category of the questions this attorney has asked me previously along the lines of "Do you think normal people write erotica?" Right?

So, if he were to ask the question that YAG posed, the 'proper' way to answer would be "That wasn't ever a behavior I engaged in, so there was nothing to stop." Or something along those lines?

I should be used to answering questions carefully, I do after all live with a narcotics officer. LOL

 

[Zephyr]

you may want to do some role playing with him first, just so you can get used to quickly identifying those "trap questions"

officers and lawyers probably use very similar methods when it comes to illiciting information.

 

[CJane]

Update

Ok, I received notification in the mail yesterday that the deposition is scheduled for the 18th of this month at 930 am, and I should plan for it to take all day - no surprise since the last one was 6+ hours.

Am I totally at my ex's attorney's mercy once I walk into his office? I know that my attorney can object, but I'm then 'compelled to answer all questions anyway' so I'm not sure what the point is.

I am dreading this like you would not believe. Not because I have anything to hide - my life is terribly boring - but because I hate being interrogated and I really really don't anticipate them even asking anything relevant at all.

I know that people suggested role-play with my boyfriend, but he's going to be out of town until the day after the deposition, so that's out.

Will I be allowed to take notes in there with me of pertinent dates/times/people? Will they be entered into the record?

If at any point I feel as if the line has been crossed from questioning to harrassment, what do I do?

I'm almost 7 months pregnant - frequent breaks are required, can they refuse to allow me to take breaks?

I hate hate hate this, and don't want them to know that. Tips on appearing calm and cool and collected when I'm actually boiling angry at the thought of all the money being wasted on this BS?

 

[Zephyr]

Ok, I received notification in the mail yesterday that the deposition is scheduled for the 18th of this month at 930 am, and I should plan for it to take all day - no surprise since the last one was 6+ hours.

Am I totally at my ex's attorney's mercy once I walk into his office? I know that my attorney can object, but I'm then 'compelled to answer all questions anyway' so I'm not sure what the point is.

I am dreading this like you would not believe. Not because I have anything to hide - my life is terribly boring - but because I hate being interrogated and I really really don't anticipate them even asking anything relevant at all.

I know that people suggested role-play with my boyfriend, but he's going to be out of town until the day after the deposition, so that's out.

Will I be allowed to take notes in there with me of pertinent dates/times/people? Will they be entered into the record?

If at any point I feel as if the line has been crossed from questioning to harrassment, what do I do?

I'm almost 7 months pregnant - frequent breaks are required, can they refuse to allow me to take breaks?

I hate hate hate this, and don't want them to know that. Tips on appearing calm and cool and collected when I'm actually boiling angry at the thought of all the money being wasted on this BS?

they can not refuse to allow you to take breaks, pregnant women need to go to the bathroom way more frequently than others, that is a fact of life.

 

[Zephyr]

Tips on appearing calm and cool and collected when I'm actually boiling angry


never answer right away, even if you need to sit there, silent, for a full minute, calm yourself and think out your answer fully, pretend that you are actually in court, think and answer as you would there.

 

[Buddabrother]

Pay special attention to the oppositions tone as they ask questions.

If the tone is hostile, or not friendly (a cute tactic to elicit an angry response) take a deep breath (to pause and see if your attorney is going to grow a pair and object) and when he/she drops the ball, state "I am uncomfortable with the tone you are asking that question in". Repeat as neccesary...it's a great way to get it on the record that the opposition was acting in a hostile manner, and if it continues you are well within your rights to inform them that if they don't stop acting hostile towards you, you will be forced to terminate the deposition.

Then when it happens again, state quite clearly why you are leaving, then get the hell out of dodge.

Plus, having a few emotional outbursts (tears, sniffles, unconrolable weeping) due to pregnancy and the hormones that come with it couldn't hurt...hell, this jack-ass is going to go on the record as hassleing a 7 month pregnant mother....right.

But if they are all peaches and cream during the depo, just be sure to think very carefully about your answers, and to be sure to give your attorney a chance to object, if only for the record. Don't bother trying to fight relevance while giving your depo, just object, get it on the record, then do the best you can.

And work-related/passwords/account info...inform them quite clearly that unfortunatly that will require a court order to comply with, as that is inappropriate subject matter in a non-criminal matter.

But I'm not a lawyer, so take all the ablove with a grain of salt.

 

[Whyte Noise]

Here's some excellent links for you to read concerning the deposition and your role in it.

http://www.abanet.org/yld/litigation/lit101pdf/Benavides.pdf

http://www.expertlaw.com/library/expert_witness/deposition_prep.html

As for having to answer every single question... Generally, unless the question is seeking privileged information, is redundant or harassing, a party must answer the question and the attorney may not direct them to refuse to answer the question.

And in case you don't already have it, here is the Missouri code that pertains to Depositions:

http://www.moga.state.mo.us/STATUTES/C492.HTM

 

[CJane]

And in case you don't already have it, here is the Missouri code that pertains to Depositions:

http://www.moga.state.mo.us/STATUTES/C492.HTM

Thanks! I used the links that you PM'd me re: interrogatories, but was having a hard time finding the stuff for depos.

On another note, LOL, I just talked to an attorney that was recommended to me by my boyfriend (who has worked with her a lot as he was a deputy in that county until very recently) and she's willing to take my case if I fire my other attorney first. The switch will also get me out of the deposition.

I need help phrasing an email/letter to my current attorney, informing her that her services are no longer required and I need my intact file as soon as possible. I also need to make sure that she cancels the deposition since there's no way a new attorney can prepare for a deposition in less than 3 days.

*deep breath*

Can y'all help me draft the letter?
Cross your fingers I can somehow come up with the $4000 retainer for the new attorney?
Should I copy the court/my ex's attorney/the GAL/etc on the letter firing my current attorney?
Can my current attorney hold my file because I owe her money?

I know this isn't all on topic for the current thread, but I don't want to start a bazillion new ones.

 

[Mbarr]

I should start attending his church this Sunday. lol

That's exactly what you should do - every Wednesday and Sunday until court proceedings have concluded. That'll take the wind right out of his sails.

Also, re your deposition. Do not attempt to be humorous, as it will not read that way on paper. As someone posted earlier, do not answer any question immediately--Give your attorney time to object, and yourself time to compose a short, concise response. Do not elaborate; answer only the question asked. Your attorney will have an opportunity to bring out additional information during his/her examination of you.