Depositions: Who asks the questions?

Just got a question from a reader: “Can a plaintiff ask questions at a deposition of the defendant?”

No.

But what a plaintiff can and should do is have a good pre-deposition session with her lawyer, during which they should discuss what questions will be asked. That’s the time for a plaintiff to suggest questions, or areas of questioning.

And, as I’ve said before, during the deposition, the plaintiff should be taking notes and at breaks going over possible follow-up questions with her lawyer:

Aside from the plaintiff’s right to be at all depositions, a lawyer should want his client there, sitting next to him, maybe taking notes, but certainly in attendance to offer off-the-record comments or refutation.

Before the defendant’s deposition, a lawyer should tell his plaintiff-client whether he wants her to pass notes, or to wait until a break to make comments to him. And after the deposition, a lawyer should ask the plaintiff to read the defendant’s deposition transcripts, to check for inaccuracies and/or to pick up good points.

No lawyer, no matter how thoroughly informed he might be about a case, can possibly know as much about the history, the facts, the circumstances, the documents, the struggles, the personalities as does his client. He should be employing his client to assist him with the case, especially when it comes to deposing the defendant.

So you don’t get to ask questions yourself, but you do get to ask your lawyer to ask questions. Keep in mind, though, that your lawyer is not and should not be invested in the minutiae of your situation, as you are, and might not think that your question(s) should be asked.

At one of my own depositions, after the defendant’s lawyer went through the expected questions about my case − he hadn’t prepared well and was merely paging through my complaint and asking simplistic questions about it − he picked up up a long email from, I was sure, his client. Either he had just received the email, or he hadn’t bothered reading it thoroughly earlier.

In any case, he read it to himself while I was sitting there. It was obvious to me that he skipped over numerous sections, perhaps deeming them purposeless, and sort of sullenly did ask a couple of questions, reading directly from the email.

Those questions were weird and/or dumb. The areas they covered had nothing to do with my lawsuit against the defendant. But the lawyer asked them anyway.

Lawyers label this kind of position as being “not in control of the client.” It means that the client pays them their fee and basically says, “Do what I tell you to.” The lawyer may object, may point out that the client’s position is legally foolish or pointless, but in the end he will do what the client tells him to.

Back to the question of whether a plaintiff (or defendant for that matter) gets to ask questions at depositions: If you are feeding your lawyer questions without listening to your lawyer’s advice about them, your lawyer is not in control of his client. That is, you.

If you’re not going to consider seriously your lawyer’s expertise in pursuing the case and knowledge of the applicable laws, why did you hire him in the first place?

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