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Discovery, Part II

By David B. Collins

After written discovery has been completed and necessary records have been obtained from third parties, the parties’ attorneys will begin taking depositions.

A deposition is an opportunity for the attorneys in a case to ask a party or witness questions about the incident giving rise to the lawsuit and/or damages being claimed in the lawsuit. A deposition typically takes place at an attorney’s office or a conference room at a public building, like a courthouse or library. The attorneys and a court reporter always appear for, and parties sometimes attend, a deposition.

The deponent is placed under oath and asked questions. Cases venued in Illinois state courts are unique in that there are two types of depositions – discovery and evidence. Discovery depositions allow a deponent to be asked questions that are relevant or may lead to the discovery of relevant information. That is a broad standard, intended to allow the parties to learn information about the case. Testimony obtained during a discovery deposition can also be used to support a motion for summary judgment and to impeach a deponent during the trial testimony.

Discovery depositions usually proceed in a proscribed order. Typically, party depositions proceed first, followed by depositions of fact witnesses – witnesses who witnessed the accident or the aftermath, or have knowledge of damages. Thereafter, depositions of “expert” or “opinion” witnesses proceed. These individuals are qualified, by education and/or experience, to give opinions. Examples of these witnesses include healthcare providers who evaluated and/or treated the Plaintiff and law enforcement officers who investigated the accident. They also include experts retained by the parties to give opinions. Examples include engineers, physicians and economists. Depositions of plaintiff’s expert witnesses go first, followed by the depositions of defendant’s experts. The depositions of plaintiff’s rebuttal witnesses, if any, go last.

An evidence deposition is used to preserve a party’s or a witness’ testimony. This is often done to preserve a doctor’s testimony, as a doctor is often unavailable to actually attend a trial to testify live. Evidence depositions are also used to obtain testimony from a witness residing outside the state of Illinois, or one who may die prior to trial. Since an evidence deposition is a substitute for trial testimony, the information that is elicited is limited to relevant information. Objections, based on relevancy and other bases, must be made to preserve the objections. Any objections made during a deposition are heard and ruled upon by the court. Thereafter, a transcript of the deposition is read by someone, or a videotape of the deposition is played, at trial, for the judge and jury.

There are no “discovery” depositions in a case venued in federal court. Every deposition in a federal case is an “evidence” deposition, meaning objections must be made to improper questions or those objections may be waived.

Regardless of the venue, depositions require extensive preparation by the attorneys who will be participating. If a party is going to be deposed, extensive preparation with the party by his/her attorney may be necessary. Testimony provided during depositions of parties and/or witnesses can have a significant impact on liability and/or damages. As such, cases can be won or lost, and damages contained or exacerbated, during the deposition phase. Counsel and their clients need to be prepared for this critical part of the litigation process.

Click here to read Discovery: Part I.

Originally published in the Spring 2012 edition of Quinn Quarterly.