Most organizations find themselves in litigation at some point in the life of the business. Maybe a disgruntled former employee brought a claim, or you had to go after a customer who didn’t pay—or a supplier who didn’t deliver. Maybe a contract went wrong, or a real estate deal turned sideways. Maybe you needed to enforce a non-compete or you hired someone under a non-compete and got drug into that dispute. Whatever the reason, most businesses will find their names in court documents on occasion. When that happens, you hire attorneys to advise you and to represent your interests in the courtroom. Every case is different, and every client has unique motivations, but most of the time, the instructions to the lawyer are something along the lines of: “Get this thing over quickly, cheaply, favorably, and with as little disruption to the business as possible.”
The work of a business litigator is to partner with the client in achieving those aims as the dispute travels through its various stations along the journey to resolution. Often, an important stop on the way involves depositions. Readers of this blog probably know what a deposition is, either through personal experience or from memories of Bill Clinton. But for the uninitiated or those who may have forgotten, a deposition is a when an attorney questions a witness under oath as part of the pre-trial fact-gathering process. It generally takes place in an attorney’s conference room and often lasts several hours. I tell clients a rough average is 4 hours, but I’ve sat through depositions twice that long, and I’ve also seen quick depositions that take less than an hour. I’ve never met a witness who enjoys being deposed. Even expert witnesses who do it regularly dislike depositions. But they are a critical part of the litigation process. Understanding a little more about their purpose and function may help prepare your business for its next litigated dispute.
First, if you or someone else in your organization is going to be deposed, it will be costly. The witness needs to prepare well before the deposition itself. The day of the deposition is likely to be long. And you will be paying an attorney to advise, assist, and advocate for you throughout the process. You will also be losing productivity while the company’s witness tends to these matters instead of running the business. Whole books have been written about the art of preparing for a deposition. I won’t repeat those strategies here, but you should lean on your attorney for guidance in this important area.
Second, depositions may be unavoidable. Parties to a lawsuit generally have a right to investigate facts relevant to the lawsuit, including questioning knowledgeable witnesses. You would not want anyone limiting your rights in that regard, and it is generally hard to limit the other party’s rights, too. But that’s not to say your opponent has an unlimited ability to question anyone it likes. The law says that any discovery process must be “proportional to the needs of the case.” And a strong body of law protects “apex employees,” such as corporate executives, from being deposed when they were not personally involved in the matters covered by the lawsuit. A good business litigator may also be able to negotiate other ways of limiting or delaying the burden of depositions.
Third, depositions have an outsized position in the mind of many attorneys. A lot of statistics are available on the so-called “vanishing” civil trial, but in general, an average civil case stands around a 95% (or greater) chance of being resolved without a trial. The reasons for this have been debated elsewhere, but one consequence is that many lawyers treat the opponent’s deposition as the showcase event in a lawsuit. If you are paying a lawyer to take a deposition on your behalf, you should instruct him or her to guard against this selfish tendency. And if someone in your organization is going to be questioned by an opposing lawyer, you should be prepared that this force may be at work.
Finally, there is no denying that depositions are powerful. When a witness is “locked in” to a certain line of testimony, that narrative will control the rest of the lawsuit. Likewise, when a party is forced to explain his or her position under the stress of adverse questioning, everyone gets a good sense of the strengths and weaknesses of that position. Deposing key witnesses is almost always essential in the rare cases that go to trial, and it is often necessary to facilitate a settlement or a key pre-trial motion in other cases.
Considering all this, nearly everything about depositions runs counter to the goals most clients pursue of resolving their litigation quickly, inexpensively, and without disrupting the business. But clients also want to resolve the dispute favorably. Finding the right balance of when and how depositions fit into these objectives is something your business litigator should be discussing with you. Make sure you are comfortable with the advice you receive on that score and that your organization is read when depositions need to be taken or defended.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.