Bernstein-Burkley, P.C. Partner, Nicholas D. Krawec, discusses the ways that depositions can be used as a method of pre-trial discovery in this week’s 5 Minute Legal Master Series episode: DEPOSITIONS.
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Welcome to the 5 Minute Legal Master series where expert attorneys help you master important legal topics. Today, board certified creditor’s rights attorney Nicholas D. Krawec discusses depositions.
Hello, I want to talk to you a little bit about depositions, and you have probably heard of them. Depositions is a method of pre trial discovery whereby the parties to contest at litigation take the sworn testimony of the opposing party or the opposing party’s witnesses to determine what evidence or facts the other side will have in support of their claim or defense at trial in order to avoid be ambushed or surprised at trial. And to help evaluate the credibility of the extent of knowledge of the opposing party’s witnesses about the facts that are in controversy. Or it can be used to set the case up for a motion for summary judgment in the effort to avoid the need for a trial if the pleading that was field appears to be either an answer that was field merely for the purpose of delay by the defendant which is particularly prevalent in debt collection mitigation. or in the case of a complaint that fails to set forth a valid cause of action against the other party.
Depositions may also be used by the defendant if he believes that the complaint does not set forth a valid cause of action and many creditors do not necessarily appreciate that fact. However, a major use of a deposition is to lock in the testimony of the defendant and or the defendant’s witnesses which can be especially helpful if the defendant or its witnesses have been prone to changing their stories or the facts. It is also important to keep in mind that in addition to taking the deposition of parties to the case, third party witnesses can be (1:48) to testify at deposition. Third party witness who have knowledge of the facts of the case but do not have a stake in its outcome or particular bias for or against 1 party or the other can be a valuable source of evidence in support of one’s case.
The creditors and their witnesses also must be prepared to support discovery by providing the necessary witnesses to be deposed and deposing to their counsel documentation on which the creditor’s claim is based. When taking the deposition of the opposing party it is very important to have a strategy going into the deposition, otherwise the deposition would be a waste of time and money and will involve aimless questions. In developing that strategy it is important for the client to share the detailed factual history of the case with its counsel as those facts can be used to tailor deposition questions to possibly set the case up for a motion for summary of judgment or at the very least limit the issues in controversy for trial.
In sharing the factual history with counsel, you as the client or creditor should identify who at the opposing party you believe has the most knowledge of the facts of the case because you can specify that representative as the person that you want to depose. Be sure to share all documentation involving the claim with your counsel especially any documentation prepared by the other party which could contain some valuable admissions by the other party. The deposition process can then be used to have the opposing party or its witness authenticate certain documents pertinent to the case. Authentication of documents can limit the facts in dispute and at least simplify the issues for trial, if not set the case up for a dispositive motion like for summary judgment. A well focused deposition can be valuable tool for either simplifying the issues for trial or eliciting testimony and evidence that could avoid the need for a trial by either setting the case up for summary judgment, demonstrating to the opposing party the benefits of an amicable settlement due to the weakness of their position.
What I hope you can take away from this video is that a deposition can be a very valuable tool and one that should not be overlooked during the litigation process. Thank you!
This has been another installment of the 5 minute Legal Master series where expert attorneys help you master important legal topics. For more information on this and other topics please visit 5minutelegalmaster.com
One thought on “5 Minute Legal Master Series: Depositions”
Thanks for the insight on depositions. In your experience, how prepared are clients to provide timely and accurate documentation and evidence of their debtors’ payment and related history? Certainly, larger creditor-clients will have resources, processes and systems in place to do this, but what advice would you give to smaller clients?