Depositions in Defamation Cases

Defamation occurs when one person makes a false statement of fact that injures the reputation of another person. In this article, we’ll discuss how to prepare and conduct depositions for your defamation case.

What is A Deposition?

After you  file a defamation lawsuit  and the defendant files an answer, the litigation progresses into what is called the discovery period. Discovery is a pretrial stage where both sides exchange information in preparation for trial.

A deposition is one of the more common discovery tools. Essentially, a deposition is the taking of an oral statement of a witness under oath, before trial. The statements are elicited through a series of questions posed by the opposing party’s attorney. The witness is supposed to answer all of those questions to the best of his or her ability, unless the question is objectionable.

As with discovery in general, the purpose of the deposition is to allow both parties to discover all of the facts at issue before trial. This not only ensures that the trial is fair, but also promotes judicial economy. The length of a deposition depends on how knowledgeable the witness is as to the facts of the case, and the complexity of the case. Depositions lasting an entire day or longer are not uncommon.

Generally depositions take place at one of the attorney’s conference rooms with the deponent (the person being deposed), attorneys for both parties, and a stenographer present. The stenographer will preserve everything that is said, word-for-word, during the session. Both parties to the litigation also have the option of being present.

The procedure of a deposition is governed by the civil procedure rules of your particular jurisdiction. Most states will limit the length of a deposition, where they can be taken, and the types of questions that can be asked.

Preparing for a Deposition

Many attorneys spend at least one full day with a client, prepping them on what questions will likely be asked. The goal is not to coach the client in what to say, but to prepare them so that they do not get nervous and flustered by a setting with which they have little familiarity.

Only answer the questions that are asked of you. Do not volunteer information. Be truthful above all else. A yes or no answer can be more than sufficient in the appropriate situation. If you do not know the answer to a question, or you knew the answer previously and have since forgotten, say so.

It's a good idea to pause for two or three seconds after each question, to allow your attorney to make any objections.

You and your attorney will review all necessary documents to refresh your memory on key issues. Remember, however, that the examiner (attorney asking the questions) will ask what documents you relied on in preparing for the deposition.

Procedure Of A Deposition

A deposition begins by swearing the witness in and obtaining his or her name and address for the record. The attorney will also make sure the witness understands that he or she is under oath and must answer all the questions accurately, unless the opposing attorney instructs them not to answer. If the deponent does not understand a question, he or she should say so.

Next, the attorney will ask the witness questions about his or her personal and educational background. This is especially important for expert witnesses in defamation cases, whose educational background must be established in detail to qualify as an expert.

The attorney will then proceed asking the witness questions, usually in chronological order.

Common Objections

An objection is a formal challenge to the question posed. An object prevents a witness’s answer from being allowed into evidence because it violates the rules of evidence or other procedural law. If an objection is not made, it is waived.

Common objections include:

  • Argumentative -- the question asks the witness to draw inferences from the facts from the case instead of establishing additional facts or verifying their reliability, causing the deponent to argue with the examiner.
  • Asked and answered -- the question has already been posed and responded to.
  • Compound -- the question asked is actually two questions.
  • Harassment -- the examiner is harassing or bullying the deponent.
  • Privileged -- the answer to the question is protected by a legally recognized privilege, such as the attorney-client privilege or the physician-client privilege.  
  • Vagueness -- the question is not clear.

Remember, some objections that would be permitted during trial are not permitted at depositions. For example, during a deposition, the relevance standard is much more lenient and questions can call for an answer that might not be admissible at trial.

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