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To Take the Deposition or Not

Your attorney has asked for your input on whether to take depositions or not. Alternatively, your attorney has scheduled depositions and you know nothing about this process. You don't know, nor do you even know what questions to ask to decide whether this should be done. First, what is a deposition? A deposition is sworn testimony under oath. There are many purposes to taking depositions. Depositions are expensive. They are expensive because you must pay for a court reporter and your attorney's time. Questions to consider when deciding whether depositions are necessary:

  1. How important is the witness? If the witness has nothing to say that will help or hurt your case, then don't take the deposition. If the witness is critical and could make or break your case, then proceed.
  2. Can you interview the witness beforehand? Having your attorney set up informal interviews is cheaper, faster, and easier than a formal deposition.
  3. Can you find out what you need to know some other way? Are there documents your attorney can request, can you talk to this person on the phone or in person, or can this person prepare a summary of what they would testify to without the need for a deposition.
  4. Is it worth it? Can your attorney successfully cross examine any witness at trial without the need for a deposition? If you know the witness, you can prepare a list of questions for your attorney to bring up with the witness. If you can do that and/or your attorney is confident then a deposition may not be necessary.
  5. Will it hurt your case? If the witness can give a deposition but won't be available for trial, you then must weigh whether that witness's testimony will be damaging to you. If the testimony is damaging why preserve that testimony with a deposition when the person can't come to trial anyway?

Think about all of these issues and then you'll know exactly how to help your attorney when it comes to deciding whether or not to take depositions.