Depositions are usually called “EBTs,” or examinations before trial. In a commercial debt collection case, depositions usually consist of one party’s attorney deposing a representative of each side that has personal knowledge of the transaction between the parties. The purpose is for each side to obtain follow-up answers that usually yield more important information about the facts of the case.
Depositions require preparation of all of the case documents by the attorney conducting the deposition. The attorney should research the relevant law for the purpose of examining the adversary’s legal theories. The attorney should prepare exhibits for presentation for purposes of cross-examination.
What Happens During a Deposition?
Depositions are attended by attorneys for both the plaintiff and defendant. If the witness is an outside third party, they will usually have their own attorney. There will be a court reporter to take a record of the deposition. The court reporter will swear in the witness and the deposition will begin. If the plaintiff’s witness is being deposed, the defendant will ask questions regarding the complaint and the discovery produced by the plaintiff. The plaintiff’s attorney will object to any questions that are improper. If a question is improper, the attorney may object but must direct their client to answer the question unless the information is protected by privilege, plainly improper, or if the answer would cause significant prejudice to any person. Any objection may be preserved for a later time, but if the objection is not made at the deposition, it is waived for purposes of trial.
Attorneys will try to ask open-ended questions to see how the defendant answers the questions to draw out the facts of the case, rather than just asking yes or no questions.
For a debt collection case, the defendant’s attorney will ask the plaintiff’s witness about the documents relevant to the transaction and explore any possible holes that could possibly render the underlying transaction unenforceable. For example, if a transaction was for a sale of goods, but part of the unpaid order and delivery were beyond the statute of limitations, the attorney will ask about the timing of the transactions to obtain information that could render the complaint untimely. Conversely, the plaintiff’s attorney will ask the defendant why the invoices were not paid, or if any payments were made that could reset the statute of limitations to keep the transaction enforceable.
After the Deposition
After the deposition is finished, the transcript of the deposition will be finalized by the court reporter and provided to the attorney that conducted the deposition. That attorney must serve the transcript on the witness’ attorney who will have usually 60 days to review the transcript and provide any revisions, if necessary.
Both attorneys during the course of their debt collection depositions will call for the production of additional documents not previously produced. The attorneys will send all of these demands in writing to the other side. These will usually be demanded after the deposition has been completed as “Post-EBT Demands.” Responses to said demands must be provided within 30 days.
Usually, after depositions, the parties will mark the case ready for trial, unless depositions of additional witnesses are necessary.
The deposition is an important part of discovery, and if conducted properly and competently, can provide valuable information and documentation necessary for an attorney to prove their case.
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