Whose Depositions Should You Attend?

As a plaintiff, you know that you will be required to submit to a deposition by opposing counsel. If you are married, it is likely that you plan to attend your spouse’s deposition as well, as that is often scheduled for the same day as your own. Beyond that, you probably don’t plan to attend any other depositions in your case. Most lawyers will not encourage you to attend other people’s depositions — but maybe they should. As a named party in the lawsuit, you have the right to attend any and all depositions in your case. The rules of sequestration of witnesses (keeping witnesses from sitting in on each others’ testimony to avoid collusion) do not apply to you. So, why would you want to attend anyone else’s deposition, and whose depositions should you attend?

Why Attend Another Witness’ Deposition?

Depositions can be boring, time consuming affairs even for the parties actively involved (the lawyers and witnesses), and this will certainly be the case for a passive observer such as yourself. You may have to miss time from work to attend them, as they are scheduled almost exclusively during business hours, and your lawyer may not even want you there (who needs the extra pressure?). You won’t be able to speak during the deposition, and at best you can aid your lawyer by slipping him an occasional note. So why subject yourself to that?

I would argue that you should attend every deposition where your mere presence may positively influence the testimony in your favor. There is a scene from The Godfather: Part II in which Frank Pentangeli (a member of the Corleone crime family) is testifying before Congress and is about to expose the Corleone family’s mafia secrets. Suddenly, an elderly Italian man (dressed in “old country” attire) enters the hearing room. Frank looks back at the man, who doesn’t say a word — he just takes a seat in the gallery. From that point forward, Frank denies the existence of the mafia and refuses to give the hearing committee any useful information. It is later revealed that this man is Frank’s cousin from Sicily. Some interpret this scene as a direct threat by the Corleone family against Frank’s cousin (testify and we’ll kill him). I always saw it as a more subtle attempt to coerce Frank into not betraying “the family” by appealing to his sense of shame. If he were to become a “rat”, he would have to do it in front of one of his family members from the old country. Under this pressure to preserve his family’s honor, Frank cannot betray his oath to the Corleone family.

Obviously, I’m not saying that you should intimidate witnesses in any fashion. I use this example merely to illustrate that witnesses can be influenced by the mere presence of other people. In your case, you want the witnesses to tell the truth, or at the very least, hold true to what they have previously represented to you. It is much harder to throw someone under the bus when that person is sitting directly across from you. So which witnesses might be influenced by your presence?

Why You May Want to Attend the Defendant’s Deposition

If you were injured by the clear actions of a single individual, such as another driver in a car accident, you may want to attend his deposition. Unless the defendant is a sociopath, it will be much harder for him to testify falsely about how the accident occurred while you are staring at him from across the table. He’s also much less likely to speculate about facts or conversations which took place at the time of the accident, knowing that there’s someone in the room who will know when he gets something wrong. Even though you can’t jump up out of your seat and yell “liar!” every time he bends the truth, the thought of that happening will be in the back of his mind. This subtle pressure may mean the difference between an outright admission of fault and a hedged answer that leaves open the possibility that you were at fault as well.

If your defendant is a property owner or business, such as in a slip and fall case, your presence may not have much of an effect unless the person being deposed actually saw your accident and you expect him to contradict your account of what happened. The best pressure is applied when the witness knows that you know what really happened. If you don’t know how a liquid got onto the business’ floor (and if you slipped on it, I’d guess you didn’t see how it got there), a defendant won’t have a hard time speculating that it occurred in such a way that it minimizes his chance of liability.

If you attend a defendant’s deposition, be polite and unobtrusive. You job is not to piss the person off to the point that they become tight-lipped. This might hurt your lawyer’s chances of getting him to slip up. You must rely solely on your presence to apply the needed pressure.

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Should I Attend Doctors’ Depositions?

Most of the time, your presence will not influence the testimony of your treating physicians. However, if you’ve noticed a pattern of your doctor being very supportive of your case while he’s treating you, and not so supportive in his written records (ask your lawyer), you may want to attend his deposition. Some doctors will patronize plaintiffs and say whatever they feel they need to in order to avoid confrontation over the lawsuit, all the while creating written records which undermine your case.

If you find yourself in this position, your presence at his deposition may force him to testify more consistently with what he said to you during your appointments. Otherwise, he knows he’s going to get an earful at your next appointment. This will also allow your lawyer to more effectively ask questions such as “Didn’t you tell the plaintiff . . .(e.g., that his injury would prevent him from returning to his job?)” and make your doctor answer right in front of you. Again, it’s harder for your doctor to say “the plaintiff must have misheard me” or “I never said that” when he knows that someone else in the room (you) knows exactly what he said.

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You shouldn’t bother attending the depositions of non-treating doctors, such as the defendant’s expert witnesses (or even your own, if they’ve never treated you), as your presence is unlikely to have any impact on their testimony.

What About Other Witnesses?

With other witnesses, you’ll have to play it by ear. If your employer is being deposed, ask yourself if he’s less likely to be critical of you in your presence. For family and friends, consider the likelihood of them downplaying your injuries or exposing embarrassing secrets while you sit within earshot. If you have any doubts, you should probably try to attend their depositions.

What if My Own Lawyer Thinks I Shouldn’t Attend Other Depositions?

I am not going to tell you to go against your own lawyer’s advice. He knows your case better than I do. However, it wouldn’t hurt to ask his reasons for not wanting you to attend other depositions. If they sound like good reasons, don’t argue with him. If they don’t sound like good reasons, try to pin him down on why he thinks it’s a “bad idea” for you to go. Don’t just settle for “I don’t think it would help.” Unless it would hurt your case, what do you have to lose, aside from your own time?

An additional benefit of attending other depositions is that you know your lawyer will be thoroughly prepared, and won’t just “wing it” (yes, we do that from time to time). No lawyer wants to look unprepared in front of his own client.

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