Oral Versus Written Depositions for Lawyers

February 7, 2001

Some courts finding that a litigant’s lawyer can depose the other party’s lawyer require that the deposition proceed by written questions. These courts’ goal is to avoid the type of acrimony that might be expected when one litigator deposes an adversary.

Not every court agrees that lawyers must be deposed in this somewhat stilted fashion. In United States Fidelity & Guaranty Co. v. Braspetro Oil Services Co., Nos. 97 Civ. 6124 (JGK) (THK), 98 Civ. 3099 (JGK) (THK), 2000 U.S. Dist. LEXIS 12669, at *16, 20 (S.D.N.Y. Aug. 31, 2000), the court concluded that lawyers were fact witnesses that could be deposed. In discussing the appropriate type of deposition, the court explained that “[b]ecause the attorneys are fact witnesses to conversations and meetings involving other participants, credibility issues and inconsistencies in the witnesses’ testimony are likely to arise, for which follow-up questioning and more flexible oral examination techniques are most useful.”

Lawyers who seek to depose their adversaries (or avoid a deposition notice themselves) should bear in mind that such depositions can proceed in more than one way—sometimes with dramatically different results.