After a lawsuit is filed, the attorneys for both sides of the case engage in an exchange of information. They is generally referred to as the “discovery” stage of litigation. One side to the case, such as the Plaintiff, may ask that the Defendant respond to written questions (referred to as interrogatories), product requests for the production of documents, and even respond affirmatively or negatively to single questions (referred to as admissions). While this information can form the landscape of the case and be vital in determining whether or not a case may win or lose, often, the single most important part of discovery deals with the parties themselves- depositions.
Under Massachusetts Rule of Civil Procedure, Rule 26 governing discovery:
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.
A deposition is a formal meeting between the parties in which questions are asked, under oath, to one of the parties. Typically, the party being asked the questions (the deponent) will be present with his or her attorney, the attorneys representing the other parties to the matter, and a stenographer. After the stenographer puts the deponent under oath, the deposition gets under way. Depositions allow the parties to truly flesh out their case and ask any questions (within reason) that they’d like to in an effort to get a better understanding of the underlying allegations for the matter. For instance, if you are the Plaintiff in a medical malpractice action, the attorney for the nurse or physician may depose you through his or her attorney. The attorney would then ask you questions ranging from your childhood, your educational background, the alleged incident in question, whether you have been convicted of any crimes, your relationship status with your significant other, how you were after the accident, other cases you’ve been involved in, etc..
While some of the questions in a deposition may feel intrusive to the person sitting in the hot seat, this information is necessary in order to fully understand a person, the situation, the environment, the setting, etc. It is the hope of most attorneys conducting a deposition that information will be gained through the deponent that will set the stage for a winning trial argument or advantageous settlement agreement. There is, however, certain information that may not be explored in a deposition. Generally, a deponent does not have to respond to questions concerning confidential communications between the deponent and his or her attorney, confidential martial communications between the deponent and his or her spouse, and confidential information between the deponent and his or her therapist or psychiatrist.
While the scope of deposition questions can be rather large in order to prepare an attorney adequately for trial on the merits of the case, not every question asked during a deposition may be asked at an actual trial in front of a judge and jury. There are extensive rules of evidence that govern what may be asked, of whom, and in what form. While these rules are relaxed for the purpose of a deposition- they are in full force at trial. As such, unless an attorney has a relevant reason to be asking a question of the witness on the stand, put in the proper format, it will not be admissible at trial.
Discovery must be taken seriously when a person decides to file a lawsuit in Massachusetts. Special attention must be given to deadlines for the responses to such discovery requests in order to avoid a dismissal or an adverse judgment by the judge. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.