Written Discovery and Depositions
The film ‘The Social Network’ has several entertaining deposition scenes
The attorneys at Bundy Law write and teach extensively about discovery. Broadly speaking, there are two common, effective ways to obtain information from the other side (your opponent) in a civil lawsuit:
Written discovery requests. These involve written questions to the opposing party that they must answer under oath within 30 days.
Depositions. These are live, real-time question-and-answer sessions where your lawyer may ask the witness questions about almost anything.
Many cases involve a combination of written discovery and depositions, as they are not mutually-exclusive. There may be strategic reasons about whether and when to issue written discovery requests or to send notice to the opposing party to appear and testify in a deposition. Each method has its strengths and weaknesses, and the choice often depends on the specific circumstances of a case and the strategic goals of the parties involved.
There are benefits and drawbacks to choosing written discovery or a deposition depending on the circumstances and needs of each case.
In many cases where a deposition is contemplated, counsel may not schedule a deposition of the opposing party until after the opposing party’s written discovery responses are received. Reviewing written discovery responses often provides valuable context for the deposition. Written discovery responses may reveal that certain areas of inquiry are no longer relevant or that a deposition is unnecessary. The responses may help streamline the deposition to focus on areas where the parties disagree. The responses and objections to written discovery request can help set the tone for discovery and allow the attorney who will deposing the opposing party to somewhat assess the degree of hostility and candor of the opposing party in advance of the deposition.
More written discovery may be issued after a deposition has occurred. A deposition often reveals new facts, documents, or witnesses. This new information may necessitate further written discovery to delve deeper into these newly uncovered areas. A deposition may raise questions or inconsistencies that require clarification through additional written interrogatories or requests for production. Written discovery may also be used to gather information that may be used to impeach a witness's testimony given during the deposition.
Discovery is not taught in law schools. Most attorneys learn discovery by merely mimicking what they see and hear in other offices, causing them to be inefficient and perpetuate poor practices and habits. Our lawyers have advanced training for written discovery and depositions, including best practices training for depositions from the National Institute of Trial Advocacy. We have a complete library about depositions in all manner of civil cases, including helpful DVDs that we share with clients to help them prepare for their depositions.
