Depositions: who should be there?

The other day I got a search string along the lines of “Does my lawyer come with me to my deposition?”

WHAT?!?!?! Am I reading this correctly?

People, what is going on out there?

OK, that’s far too many (rhetorical) questions. I’m now going to make simple statements. Maybe I’ll number them. Sure, why not — oh, sorry, that’s another question.

  1. After your lawsuit has been served and answered, both lawyers send each other document demands, specifying all the documents that they have sniffed out are relevant to the case.
  2. After your lawyer gets these documents (or gets weird and indubitably dishonest responses saying that the defendant does not have possession of the documents, doesn’t know where they are, blah blah blah), she prepares for depositions.
  3. Depositions are usually scheduled toward the end of the stage of a lawsuit called discovery. It’s called “discovery” because each party is discovering what the other guy’s got: what documents and/or testimony will offer evidence of your claims and contentions in this lawsuit.
  4. Those documents the lawyer has received will be combed through and some or many selected as exhibits in the depositions. During the deposition, each document will be marked with a number and handed to the deponent so that your lawyer can ask questions about it.
  5. So what is a deposition? It’s a Q and A., a serious question-and-answer session. Your lawyer asks the questions of the defendants, and the defendants’ lawyer deposes you, the plaintiff, and asks you questions. (It’s my impression that the plaintiff gets deposed first, but I don’t know if that’s a general rule.)
  6. Each party should be/must be deposed.
  7. If there are other people who are not parties to the lawsuit but who have information important to the lawsuit, they too can be summoned to be deposed. They are called “non-party witnesses.” (When I’m feeling not very generous, I call some of those non-party witnesses “unindicted co-conspirators,” but that’s just me.)
  8. Who attends depositions? The lawyer whose deposition it is and who will be asking the questions. The lawyer who is representing the party of whom the questions will be asked. A professional court reporter who will be recording (on a small machine with a few fat keys which nowadays links to a computer) everything that everybody says and who will, shortly after the deposition, produce a transcript of the affair that will look like the script of a play. And, natch, the person being deposed. Both plaintiffs and defendants have a right to be at all depositions in a lawsuit but don’t have to be. But really, really should be.
  9. In answer to that alarming search question, if your lawyer doesn’t come with you to your deposition, your lawyer is in violation of I don’t know how many professional codes. Your lawyer MUST be at your deposition. I can’t even imagine a scenario in which your lawyer tells you, “Oh, by the way, I won’t be there but have a blast” — but if anything like this happens, whatever the excuse, tell your lawyer to cancel the deposition. And then cancel your lawyer.

That’s much more than I intended to write today. Mostly, I intended to say: yes, your lawyer has to be at your deposition, with you. Yes.

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