Whether you are a property manager, board member, or homeowner, the likelihood of being involved in litigation is ever-increasing. The COVID19 pandemic has brought a wave of litigation throughout the country, with homeowners’ association related issues being a hotbed. One inherent aspect of that litigation involves the litigants taking depositions.
A deposition serves as a tool for the parties of a lawsuit to take the sworn statements of persons with information relevant to the suit. These serve as the basis of evidence and fact for any given case. For example, in a construction defect case by the Association against a developer, board members can expect to be deposed by the developer’s counsel, along with any other defendant parties to the lawsuit. However, for as much as they are useful to litigation, they can be equally stressful for deponents. To help reduce the stress and anxiety associated with depositions, allow this to serve as a guide for what to expect.
It’s not like the movies (typically)
As portrayed in movies, depositions appear highly contentious, full of surprises, and emotionally charged. While that can certainly happen, it is an exception rather than the rule. Parties attending the deposition are typically Plaintiff’s attorneys, Defendant’s attorneys, and the court reporter. Plaintiff’s counsel and Defendant’s counsel usually have exchanged all of the information they have, which means surprises are unlikely. Moreover, the objections in depositions are limited to “form” objections as opposed to speaking objections. That means if counsel has an objection to a question being asked, they are supposed to simply state that they have a form objection for the record. So, you are unlikely to hear words like “hearsay” or “speculative” during a deposition objection.
Yes, you have to answer the question
The scope of depositions can be incredibly broad, sometimes eliciting information that seems borderline irrelevant. Unfortunately, if you are asked a question during a deposition, you are obligated to answer, unless counsel instructs you not to. Remember, you are under oath! Think carefully about your answer and take time to formulate a response, but you must be truthful. I often ask my clients to take ten seconds before they answer a question. That not only gives me time to object if necessary, but also forces the deponent to slow down and think before answering.
Show up to the deposition
All too often, folks fail to show up for their depositions. Perhaps out of anxiety or a belief that they do not know enough about the subject matter to offer any testimony. Regardless of the reason, failure to show up for a deposition could result in sanctions as severe as being held in contempt of court.
Right to counsel
You are entitled to counsel. Even if you are not a party to the lawsuit, you are entitled to have your own counsel present. Depending on the subject matter of your testimony, obtaining counsel may very well be worth the expense.
Reprinted from the February 2023 issue of the CAI-NE Florida Chapter’s Community Connection.
Kaylin Martinelli is an attorney in Becker’s Construction Law & Litigation Practice with a focus in construction defect litigation. She has a broad background in insurance defense and understands how insurance companies handle and defend against construction defect claims. Ms. Martinelli also has extensive experience conducting necessary discovery including taking depositions, attending inspections, and drafting discovery documents.