In this week's Freedom Friday blog and email newsletter, I want to answer an important question that relates to litigation, and I mentioned this topic several weeks ago when I wrote about discovery issues in general, and that is “What is a deposition?”  If your small business gets involved in any type of lawsuit, and that lawsuit becomes contested, then after initial pleadings are filed, there will always be a round of written discovery, usually consisting of interrogatories and requests for documents.  However, if that is not enough for one side or the other to file a motion for summary judgment, then then next step is almost always depositions of the parties, and possibly other witnesses.  So, in today's Freedom Friday blog and email newsletter, I'm answering the question, “What is a deposition?”

A deposition is an oral examination of a witness under oath, before a court reporter, but not in the courtroom.  Typically, depositions are held in lawyer's offices (especially if it's a party being deposed), or in a conference room.  Some depositions are also held via videoconference, especially in this post-pandemic age.  However, in Oklahoma, many depositions are now being done in person again.  I've participated in many depositions both in representing the party being deposed, and in deposing the opposing party or other witnesses in a case.  Depositions are an important discovery tool because in essence it is a preview of a party's or a witness's testimony at trial.  If a case has become so contested that it cannot be resolved with a summary judgment motion following written discovery, then depositions are essential to resolve the issues in the lawsuit.  At the very least, it gives the deposing attorney a preview of the party's or witness's testimony.

There are some other advantages to taking depositions in a contested business litigation case.  One major advantage is that not only does the deposing attorney get a preview of testimony at trial, but depositions can also help the parties better understand what an opposing party's theory of recovery or defense is, and better understand the facts.  If there is an expected issue of credibility of a witness at trial, then taking that witness's deposition can also assist with that issue.  If the witness testifies at his or her deposition of one set of facts, that witness can't legitimately change his or her story at the time of trial.

Another advantage to taking depositions is that they can help determine the settlement of the case.  After taking the opposing party's deposition, you might get a grasp on how strong their case is.  If they have a strong case, then perhaps you should consider settling and not go to trial.  If they have a weak case, then maybe that gives you some leverage, and they need to come to term with your position if they wish to avoid a trial.  Often when I take another party's or a witness's deposition, I will get a good feel on how they will be as a witness in the case.  I had a case years ago where I took three (3) depositions of fact witnesses, and they did not do a good job with their testimony, and so the lawyer representing the opposing party decided that it would be better to settle the case instead of going to trial.  I've also been involved in a more recent case where the mere threat of taking the opposing party's deposition has caused the parties to explore the possibility of settlement of a major issue in the case.

So, that's what a deposition is all about in a nutshell.  It's a major discovery tool to preview the testimony of a party or a witness in a contested civil case.

Thinking about starting a small business?  Or maybe your small business is having issues with contracts, leases, business partners, collection issues, or experiencing other barriers to growth?  Please contact me at [email protected] to schedule a FREE strategy session.

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