Whose Depositions Should You Attend?

As a plaintiff, you must submit to a deposition by opposing counsel. If you are married, you likely plan to attend your spouse’s deposition, 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. You won’t be able to speak during the deposition, and at best, you can aid your lawyer by taking notes to correspond with your lawyer later or during the breaks. 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. You want the witnesses to tell the truth or, at the very least, hold 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 or her deposition. Unless the defendant is a sociopath, it will be much harder for him or her to testify falsely about how the accident occurred while you are staring at him or her from across the table. The witness is also much less likely to speculate about facts or conversations that took place at the time of the accident, knowing that someone in the room will know when he or she gets something wrong. Even though you can’t jump out of your seat and yell “liar!” every time the defendant bends the truth, the thought of that happening will be in the back of his or her 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 also at fault.

Suppose your defendant is a property owner or business, such as in a slip and fall case. In that case, your presence may not have much effect unless the deposed person saw your accident and you expect him or her 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 their chance of liability.

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

Should I Attend Doctors’ Depositions?

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

If you find yourself in this position, your presence at the deposition may force the doctor to testify more consistently about what he or she said during your appointments. Otherwise, the doctor knows he or she will 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/her injury would prevent him/her from returning to his/her 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 or she knows that someone else in the room (you) knows exactly what was said.

In general, you shouldn’t bother attending the depositions of non-treating doctors, such as the defendant’s expert witnesses, as your presence is unlikely to impact their testimony. These are “hired gun” witnesses who readily testify 50 times yearly. They’re going to say what they have planned.

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 or she is 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. You should probably try to attend their depositions if you have any doubts.

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

I will not tell you to go against your lawyer’s advice. He or she knows your case better than I do, as they are actively involved. However, it wouldn’t hurt to ask for reasons for not wanting you to attend other depositions. If they sound like good reasons, don’t argue with him or her. If they don’t sound like good reasons, ask for clarification on why he or she thinks it’s a “bad idea” for you to go. The simple reason might be that they are used to their clients sitting in on the depo. 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?

Another benefit of attending other depositions is that you know your lawyer will be thoroughly prepared and won’t just “wing it” (yes, lawyers do that occasionally). No lawyer wants to look unprepared in front of his or her client.