Navigating Depositions in Canada: Defense Strategies (2023)

Depositions, or examinations for discovery, play a significant role in Canada’s legal system as they enable parties in a lawsuit to gather evidence from the opposing side. The deponent is sworn in and questioned under oath by the opposing counsel, with the goal of collecting information and evidence that can be used in court. However, the process can be challenging for deponents, particularly if they are unfamiliar with the deposition process.

As a lawyer defending a deposition in Canada, it is crucial to be well-prepared and to have a solid strategy in place. This article will explore effective defence strategies for navigating depositions in Canada.

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Navigating Depositions in Canada: Defense Strategies (1)

Understanding the Deposition Process

To navigate depositions in Canada effectively, lawyers must first have a clear understanding of the deposition process. In Canada, depositions typically take place after a statement of claim or statement of defence has been filed.

The goal of the deposition is to gather evidence that can be used in court, but it can also be used to assess the credibility of witnesses and to identify weaknesses in the opposing party’s case. It is essential to note that everything said during a deposition is under oath and can be used in court.

Preparing for the Deposition

One of the most critical defence strategies for navigating depositions in Canada is to be well-prepared. This involves reviewing all relevant documents, such as pleadings, affidavits, and expert reports, and speaking with the deponent to ensure they understand the process and what to expect during the deposition.

During the preparation phase, lawyers must identify any potential weaknesses in the case and develop a plan to address them. This includes anticipating potential lines of questioning from the opposing counsel and preparing the deponent to respond confidently and effectively.

The logistics of the deposition must also be considered during preparation. Factors such as whether the deposition will be conducted in-person or virtually, what technology will be required, and who will be present are all essential factors to consider.

Defend Depositions in Canada

During the deposition, the deponent will be asked a series of questions by the opposing counsel. To navigate depositions in Canada effectively, deponents must remain calm, and focused, and listen carefully to each question before responding.

One effective defence strategy is to answer each question truthfully and directly, without offering any additional information. It is also important to avoid speculation or guessing and to answer only what is known or can be verified.

If deponents are unsure of how to answer a question, they can ask for clarification or take a break to confer with their lawyer. Taking the time to provide a thoughtful and accurate response is better than rushing through and risking making a mistake.

Objecting to Questions

In some cases, opposing counsel may ask questions that are inappropriate or beyond the scope of the deposition. In these situations, it may be appropriate to object.

Objections during a deposition in Canada are typically made on the basis of relevance, privilege, or form. If the deponent believes a question is not relevant to the case or is protected by privilege, they may object. Similarly, if a question is unclear or ambiguous, the deponent may request clarification.

It is essential to object respectfully during a deposition without interrupting the opposing counsel. If a dispute cannot be resolved, it may be necessary to seek direction from the court.

Closing the Deposition

Once the deposition is complete, it is crucial to review the transcript carefully to ensure it is accurate and complete. Addressing any errors or omissions promptly is essential to avoid potential issues in court.

Statistics reveal that 30.5% of civil litigation cases in Canada go to trial, with 69.5% being resolved through out-of-court settlements or other means. In cases that go to trial, depositions can be instrumental in providing evidence and building a strong case.

How do you prepare for deposition defence?

Deposition defence is a critical aspect of the litigation process, and proper preparation is essential to protect clients’ interests. In this article, we will explore how to prepare for a deposition defence.

The deposition process is an essential part of the litigation process and enables opposing parties to gather information and evidence from each other. In Canada, civil litigation cases take an average of 525 days to resolve, with only 30.5% of cases going to trial. This makes depositions an important tool for building a strong case.

Navigating Depositions in Canada: Defense Strategies (2)

Defend Depositions in Canada

Preparation for deposition defence should involve a thorough review of all relevant documents related to the case, including pleadings, affidavits, and expert reports. It is also crucial to speak with the deponent to ensure they understand the deposition process and what to expect. By anticipating potential lines of questioning and developing a plan to address them, lawyers can prepare their clients effectively.

Identifying key themes that may arise during the deposition is another important aspect of deposition defence preparation. These themes may relate to legal issues or witness credibility. By identifying these themes, lawyers can develop a strategic plan for the deposition and prepare their clients accordingly.

Practicing with the deponent is a crucial aspect of deposition defence preparation. Mock depositions can help prepare the deponent for the types of questions that may be asked during the actual deposition. This can help the deponent become more comfortable with the process and ensure that they are confident and prepared during the actual deposition.

Reviewing Case Law

Reviewing case law related to the case can also be helpful in deposition defence preparation. It can help lawyers anticipate potential lines of questioning and identify legal arguments that may be relevant during the deposition. However, it is important to note that case law should not be relied upon solely to prepare for deposition defence.

In conclusion, preparing for deposition defence requires a thorough understanding of the deposition process, identifying key themes, practicing with the deponent, and reviewing case law. Depositions are an essential part of the litigation process, and it is crucial to be well-prepared when defending one. By being well-prepared, lawyers can ensure that a deposition process is a valuable tool for protecting their client’s interests.

Should I ask questions when defending a deposition?

As a defending lawyer, your role during a deposition is to protect your client’s interests. You can do this by asking questions that clarify issues, uncover weaknesses in the opposing party’s case, and develop a stronger defence.

However, it is important to note that the types of questions that can be asked during a deposition are limited. Questions must be relevant to the case and cannot be harassing, oppressive, or unduly repetitive. It is also important to avoid asking leading questions, which can influence the deponent’s response.

Ultimately, the decision to ask questions during a deposition will depend on the specifics of the case and the deposition. As a defending lawyer, it is important to weigh the potential benefits of asking questions against the risks and limitations of doing so. Consulting with experienced litigation counsel can help you make an informed decision on whether to ask questions during a deposition.

What are valid objections in a deposition?

In a deposition, lawyers can object to questions that are improper, irrelevant, or violate the rules of evidence. These objections are essential to protect the interests of the deponent and ensure that the deposition is conducted fairly and within the bounds of the law.

Several valid objections can be made during a deposition. Relevance objections are the most common, as they can be raised when the question asked is not relevant to the case or the line of questioning being pursued. Form objections can be made when a question is unclear, confusing, or ambiguous, and privilege objections can be made when a question requires the deponent to reveal information that is protected by privilege.

Defend Depositions in Canada

Hearsay objections can be raised when the opposing counsel asks the deponent to testify to information obtained from someone else, which may be unreliable. Harassing or oppressive objections can also be made when a question is considered harassing or oppressive to the deponent.

Statistics show that in Canada, civil litigation cases take an average of 525 days from the time of filing to resolution. Depositions can be an essential tool in building a strong case and providing evidence for trials. In 2019, the United States saw an estimated 4.5 million depositions, with an average cost of $2,500 and lasting for 2.5 hours.

Overall, valid objections during a deposition are critical in protecting the deponent’s interests and upholding the integrity of the process. Lawyers should make objections in a respectful manner and avoid disrupting the deposition unnecessarily. By understanding the valid objections that can be raised, lawyers can better protect their clients during the litigation process.

We hope you found this guide on how to defend depositions in Canada helpful.


How do you answer tricky deposition questions? ›

What follows are numerous points or rules to keep in mind throughout the deposition.
  1. Tell the truth. ...
  2. Think before you speak. ...
  3. Answer the question. ...
  4. Do not volunteer information. ...
  5. Do not answer a question you do not understand. ...
  6. Talk in full, complete sentences. ...
  7. You only know what you have seen or heard. ...
  8. Do not guess.

How do you defend a deposition effectively? ›

Before defending a deposition, you should:
  1. use clear, simple language to explain the deposition process to your witness.
  2. instruct your witness to tell the truth at all times.
  3. advise your witness to listen closely to the question and ensure that he/she understands it completely before answering.
May 6, 2022

What should you not say during a deposition? ›

Speaking in Absolutes

Using terms like “never” and “always” in your deposition answers may do more harm than good. Answering questions with these terms may make it sound like you are being definitive about various topics.

Do I have to answer questions in a deposition? ›

You do not have to answer all of the questions presented in a deposition, however, you may be compelled to answer if the judge overrules the objection. Questions that you don't need to be answered typically fall into three categories: Private information -- questions about health, sexuality, religious beliefs.

How do you avoid answering a question in a deposition? ›

Can I refuse to answer questions at a deposition? In most cases, a deponent cannot refuse to answer a question at a deposition unless the answer would reveal privileged or irrelevant private information or the court previously ordered that the information cannot be revealed (source).

What about if I cry at the deposition? ›

Stay Calm. During your deposition, you will almost certainly get asked questions that will upset you. It is okay to show emotion or even cry if you need to. However, you must be careful not to let your emotions interfere with your ability to answer questions carefully and honestly.

What are the three objections in a deposition? ›

A Consolidated List of Proper Deposition Objections
  • Hearsay.
  • Assume facts, not in evidence.
  • Calls for an opinion.
  • Speaking and coaching objections.
  • Privilege.
  • Form.
  • Mischaracterizes earlier testimony.
  • Asked and answered.

Who goes first in a deposition? ›

Defense lawyers typically advocate that the plaintiff should be deposed first because the plaintiff has the burden of proof. Plaintiffs' counsel contrarily usually contend that whoever asks for the deposition first should get to take the first opposing party deposition.

How do you know if your deposition went well? ›

You know your deposition is going well if you are answering questions to the best of your ability according to the advice of counsel. Your lawyers are there to protect your interests and object to questions you should not answer.

Can you say I don't remember in a deposition? ›

"I don't recall" is often the most truthful answer if you're not sure. Then if the document shows up, it may refresh your memory, but it doesn't contradict your sworn testimony. On the other hand, if something is fundamental and wrong, you would never have done or said that. Don't hide the truth behind memory.

What questions Cannot be asked at a deposition? ›

You have a right to refuse any questions about a person's health, sexuality, or religious beliefs (including your own). The opposing attorney will have to explain how your answer has a direct bearing on the case in order to compel you to answer.

Can personal questions be asked in a deposition? ›

They can ask anything they want, including lots of embarrassing and personal stuff. At trial, they can point out differences between what you said at the deposition and what you say at trial, so don't say anything unless you are sure about it.

Who asks questions first in a deposition? ›

Usually the person who requested the deposition will ask questions first. The attorney who represents the person being deposed might ask follow-up questions only to clear up any misunderstandings that may have come up during the initial questioning.

What to say in court if you don t want to answer a question? ›

Good ways to say anything but "No Comment" to questions you really don't want to answer: "I'm sorry but I'm not able to speak to that subject" "Thanks for asking but I'm not able to answer that question"

What is most likely to happen during deposition? ›

A deposition is the pre-trial taking of sworn testimony outside of the courtroom about the facts related to a case. This is an opportunity for both parties to meet and ask questions of the opposing side, obtaining answers and statements relevant to the case.

What is the most common mistake surveyors make when asked to testify at a deposition or hearing? ›

The two most common oversights a surveyor makes when preparing for a hearing are: Not reviewing the case documents thoroughly • Having too little communication with the CMS lawyer.

Can you plead the 5th at a deposition? ›

The general rule is that if you plead the Fifth in discovery, you cannot change your answer later and waive your Fifth Amendment privilege at trial. So, if you plead the Fifth in discovery, whether in writing or in a deposition, you may be stuck with your answer, even if you didn't do anything wrong.

Who answers questions at a deposition? ›

In a deposition, the opposing attorney (counsel) will ask you various questions, and those questions and your answers will be recorded by an official court reporter. There is little difference between testimony at a deposition and testimony in the courtroom, except that there is no judge presiding during a deposition.

How do you calm your nerves for a deposition? ›

What follows are some useful tips that I give to my clients to prepare them for their deposition.
  1. Always tell the truth. … ...
  2. Keep calm. ...
  3. Take your time. ...
  4. Remember the transcript. ...
  5. Be polite. … ...
  6. Don't answer a question if you don't understand it.
Jul 20, 2015

Should I be nervous during a deposition? ›

Absolutely. The fact that you feel nervous about your deposition is a good thing. This part of the case is important and being nervous or concerned shows that you care about how you do. And a successful deposition is simply one where you tell the truth on each answer you give to each question asked.

Is it normal to be nervous at a deposition? ›

Depositions can be used as testimony at trial. For many people, this will be the first time they have answered questions under oath. It is common to be nervous before your deposition.

What do you say at the beginning of a deposition? ›

The oath you will take at the beginning of the deposition is to tell “The Truth, The Whole Truth, and Nothing But The Truth.” Like many things in our normal lives, we tend to blur it all together into one image.

Do both sides ask questions in a deposition? ›

Depositions are used to lay out the basic information in the case, involving questions that are asked by lawyers on both sides. These depositions are usually very long, such as several hours, because the lawyers involved are trying to get as much information as possible about what witnesses know.

What comes next after a deposition? ›

After the deposition is taken, the parties involved will review the transcript and may use it to negotiate a settlement. If the parties are unable to reach a settlement, the case will proceed to trial, where the deposition transcript can be used as evidence.

How long after deposition will they settle? ›

All in all, your legal team and the team of the opposing party may reach a settlement several weeks or months after deposition. However, deposition can also sometimes lead to a lawsuit; it all depends on the specifics of your case.

How long does it take to prepare for a deposition? ›

You should meet with your injury lawyer well before the deposition for preparation. Depending on the complexity of your case, the preparation can take anywhere from an hour or two to multiple hours or even days.

What happens if you say something wrong in a deposition? ›

Even though a deposition is sworn testimony and can be utilized in court, a witness or deponent does not need to worry if they make a mistake in his or her testimony.

How do you speak in a deposition? ›

Deposition Tips
  1. Be prepared. ...
  2. Think before answering. ...
  3. Never volunteer information. ...
  4. Make sure you understand the question. ...
  5. You must tell the truth. ...
  6. Don't get rattled or upset. ...
  7. Don't guess. ...
  8. If you do not remember, say so.

How do you swear in a witness for a deposition? ›

To swear in a witness, who is called a deponent in a deposition, you would ask the deponent to raise his or her right hand and then ask, Do you solemnly swear or affirm that the testimony you are about to give is the truth and nothing but the truth?

Can you object to a leading question in a deposition? ›

Objections to questions during an oral deposition are limited to “Objection, leading” and “Objection, form.” . . . These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the deposition to be later raised in court.

How many attorneys can ask questions at a deposition? ›

This will depend on how many parties there are in the lawsuit. If each of the parties is represented by a different lawyer, each one may be permitted to ask you questions. However, one lawyer must complete his questions before another begins. Question: How long does a deposition take?

Can you instruct a client not to answer in a deposition? ›

Instructions to refuse to answer should occur only in response to questions implicating a privilege or right such as the attorney-client privilege, the spousal/marital privileges, the right to refrain from self-incrimination, and the like.

Can you read from notes in a deposition? ›

You should not bring any notes, diaries, or other records to help you state your case during a deposition unless they have been thoroughly reviewed by your attorney. This is because any document you produce may be examined by the opposing counsel, and can potentially be used against you.

How do you ask open-ended questions in deposition? ›

Asking open-ended questions.

Avoid using words like “all,” “everything,” “everyone,” and other universal descriptors, and counsel your witness to counter these types of questions with, “I'll answer to the best of my ability.” This will allow you to address the topic during cross for clarification.

Can you instruct a witness not to answer at a deposition? ›

Generally speaking, the only time a witness can be instructed not to answer a question is when the response is privileged. If the deponent's counsel instructs the witness not to answer a question, immediately ask the attorney to explain the basis of the instruction and make a record of it.

Can you say I decline to answer in court? ›

The testimony would incriminate yourself – Under the Fifth Amendment in the Constitution, you have the right to avoid giving any evidence that could self-incriminate you. In most cases, you can plead the Fifth Amendment, which legally allows you to refuse answering questions.

Can I refuse to answer a question? ›

You have the constitutional right to remain silent. In general, you do not have to talk to law enforcement officers (or anyone else), even if you do not feel free to walk away from the officer, you are arrested, or you are in jail. You cannot be punished for refusing to answer a question.

Can you decline to answer a question in court? ›

If you are a sworn witness, you cannot decline to answer a question unless you have a valid objection, such as: Answering may incriminate you. Answering may reveal private information, such as your home address, that could endanger you.

What 3 factors affect the rate of deposition? ›

Factors influencing the deposition of inhaled particles can be classified into three main areas: (1) the physics of aerosols, (2) the anatomy of the respiratory tract and (3) the airflow patterns in the lung airways.

What are the 4 main causes of deposition? ›

Deposition occurs when the eroding agent, whether it be gravity, ice, water, waves or wind, runs out of energy and can no longer carry its load of eroded material. The energy available to the erosion agents comes from gravity, or in the case of wind, the Sun.

What are 4 things that cause deposition? ›

Deposition is the laying down of sediment carried by wind, flowing water, the sea or ice. Sediment can be transported as pebbles, sand and mud, or as salts dissolved in water. Salts may later be deposited by organic activity (e.g. as sea shells) or by evaporation.

What are 2 examples of deposition explained? ›

One example of deposition is the process by which, in sub-freezing air, water vapour changes directly to ice without first becoming a liquid. This is how frost and hoar frost form on the ground or other surfaces. Another example is when frost forms on a leaf.

What is a easy sentence for deposition? ›

She gave a videotaped deposition about what she saw that night. His attorneys took depositions from the witnesses.

What is deposition 5 example? ›

Deposition is the transition of a substance directly from the gas to the solid state on cooling, without passing through the liquid state. Examples: Camphor, Iodine, Ammonium Chloride, Naphthalene, etc. Q.

What are cool examples of deposition? ›

The most typical example of deposition would be frost. Frost is the deposition of water vapour from humid air or air containing water vapour on to a solid surface. Solid frost is formed when a surface, for example a leaf, is at a temperature lower than the freezing point of water and the surrounding air is humid.

What are the three main types of deposition? ›

There are 3 kinds of depositional environments, they are continental, marginal marine, and marine environments. Each environments have certain characteristic which make each of them different than others. And different depositional environment, will have different structure and texture of sediments.

What is deposition for dummies? ›

JF: A deposition is an opportunity for parties in a civil lawsuit to obtain testimony from a witness under oath prior to trial. It's part of the discovery process by which parties gather facts and information so they can be better prepared at trial to present their claims and defenses.

How long does it take to write a deposition? ›

Knowing your case may seem obvious advice, but you may not immediately realize how much you need to prepare. Many attorneys spend hours preparing for a deposition that ultimately takes a half hour. While there is no substitute for experience, you can mitigate your inexperience by putting in extra work.

How do you use ipso facto in a sentence? ›

Ipso Facto in a Sentence

Churches are ipso facto in the God business. The law prohibiting marriages between Germans and Jews also lays down that marriages concluded in defiance of this law are ipso facto null and void, even when performed abroad in an attempt to evade its terms.

Can you say I don't know in a deposition? ›

So what happens if you're in your deposition and you don't know the answer to a question, what happens, what do you do? That's perfectly acceptable and all you should say is “I don't know.” If you don't remember, you say, “I don't remember,” and that's in fact what you should do.

Can you change your answer after a deposition? ›

The simple answer to if you can change your answers on your deposition is, yes, you can change your answers at any time. The biggest issue with a deposition is that you're not getting a list of questions that the other side is going to ask you in advance.

Can two attorneys ask questions at a deposition? ›

By the way, it is not necessarily abusive for two lawyers to question the deponent. Although tag teaming of lawyers usually isn't allowed in trial, the Discovery Act does not prohibit this in a deposition.


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