Lesson #18 – For all Members


To verify facts and firm up all loose ends of your discovery, depose parties and non-parties.

Depositions should be your last discovery method. Instead of diving right in to depositions at the start of discovery like many lawyers, and then thinking, “I wish I would have asked this and that,” wait until you have received answers to the other four discovery tools (request for production, request for admissions, interrogatories and subpoenas). Then schedule depositions to fill in the blanks and obtain the rest of the proof you need to win your case.

For example, referring to the example in Lesson #13, if my ex-wife or her attorney do not admit to every fact in my Request for Admissions regarding the “graciously” waived fees and the request to the court for an award of attorney’s fees that did not exist, I will depose both of them to get to the truth of the matters.

Depositions are costly, so be organized and prepared. You will need to hire a court reporter, stenographer or transcription service to attend and record the deposition, administer the oath, and file the transcribed deposition in your action, but if you’ve prepared your questions ahead of time and if you run the deposition in an efficient manner, you’ll have a valuable tool which you can enter on the record at trial if the truth changes or is masked in any way. And remember that, if a deponent changes their story at trial and ‘squirms’ in the witness chair, the jury will be able to ‘read their body language’ and ‘infer’ the truth of the matter, i.e. draw their own conclusions.

Depositions can be taken by oral or written examination, and can even by conducted by telephone (at least in Colorado; check the rules in your state). If you need to depose someone in another state or who cannot appear for whatever reason in your jurisdiction, you can do so by telephone or by providing written questions to be ‘propounded’ (read) to the witness by the person or firm conducting the deposition in the witness’s locale.

In any event, you will need to serve and file a Notice of Deposition, and you will need to subpoena non-parties.

Here is a Notice of Deposition

Unlike the other discovery methods, notices (of depositions, hearings and other events) must be served upon all parties. Follow the rules of civil procedure in your state to make sure that your notices contain the required information, such as date and time of the event, the names and addresses of those to be examined, and the method by which the testimony will be recorded.

If you want an adverse party to bring documents and other evidence to the event, serve a request for production along with the notice. If you want a non-party witness to bring documents and other evidence to the event, serve a subpoena duces tecum along with the notice. You can even name a business or a government agency as a deponent, and the organization must designate an officer to testify on its behalf.

In Colorado, we are limited to one deposition of each adverse party and of two other persons, not including expert witnesses. If we want to depose more than two non-parties, we have to obtain ‘leave of court’ with, for example, a Motion for Leave of Court to Depose Further Witnesses.

Make sure you read your state’s rules (especially the rules of evidence) on examination and cross-examination, objections, and the acceptable methods of recording the testimony.

Now that you know how to do discovery, go get the evidence you need to prove your case!