Experts: What Brett Favre faces in lawsuit deposition

The Mississippi Department of Human Services filed notice this week of its intent to depose former NFL quarterback Brett Favre. More than a year ago, Favre was named as one of dozens of defendants in a civil lawsuit that aims to recover tens of millions of dollars in welfare funds a state audit said were misspent. Favre has denied any wrongdoing in the welfare case and has not been criminally charged.

The deposition, scheduled for Oct. 26, would be Favre’s first time testifying under oath in this case, according to Front Office Sports. The people involved in the case aren’t commenting because of a judge’s gag order, but several unaffiliated attorneys explained what could happen when Favre arrives at the deposition in Hattiesburg, Mississippi, where Favre starred for the University of Southern Mississippi.

ESPN spoke with William W. Berry III, a law professor at the University of Mississippi; Vangela M. Wade, an attorney and leader of the Mississippi Center for Justice; and Matthew Leish, a partner at the law firm Miller Korzenik Sommers Rayman in New York. The legal experts addressed, among other things, the risks that Favre potentially faces during the deposition process, and what he could do to help his case. All three said they do not know details of the case beyond what has been reported and would speak about general legal strategies. Here are their responses, which have been edited for clarity.

What does it mean to be deposed?

Berry: The idea of a deposition is to get someone’s story on the record so that, at trial, they can’t change it later. And so it’ll obviously be very important for Brett Favre to tell the truth. This is his chance to get his story on the record.

Wade: In any deposition, it’s part of discovery, of getting information directly from that person that they’re deposing, or having that person to identify documents during the course of that deposition.

Leish: There are really two goals. One, it’s fact gathering. They’re trying to find out what this person knows. The second part of it is to try to pin him down to get some admissions that will hurt his case. It can’t be a complete fishing expedition, but they have some leeway to explore.

How long do depositions last?

Wade: I’ve seen depositions go anywhere from an hour to three days or longer for one person. It depends on the nature of the litigation and what the party is attempting to cover in that deposition.

Berry: Most depositions are usually one-day depositions, maybe eight hours. In a more complicated case, it might take longer.

What kinds of risks does Favre face during the deposition?

Leish: The biggest danger is that he says something under oath that really helps the state prove its case. Maybe he admits something that they’re trying to prove or he says something and they can call him out on it and it makes him look like he’s not credible. I think those are the two biggest risks.

How can a deposition be used as evidence in a potential trial?

Berry: If the plaintiffs in the case were to call Mr. Favre to testify and then he were to change his story on the stand, you would then cite him back to his deposition and impeach him in court. An impeachment is really showing someone’s changing their story and then the credibility that person has with a jury or a judge is shot.

What would help Favre in his deposition?

Leish: When you’re the person being deposed, it’s really defensive. You’re trying not to give the other side anything they can use. It’s not so much that you’re trying to prove your case. So his main goal is don’t hurt yourself.

But having said that, if his testimony is very consistent with what he’s saying — “I didn’t do anything wrong, here’s what I knew” — and he backs that up, he’s got real evidence to support that, it can be useful to him. And the state can say, “Hold on a second here, maybe we have a problem. Maybe we’re going to have a hard time proving our case.”

Berry: What discovery is, is really a negotiation on some level in the sense of each party is trying to marshal, each lawyer is trying to figure out the best they can what really happened. So often you see these disputes in the media and you have the “he said and she said,” but then you start drilling down and you look at the actual evidence in the case and what evidence do you have and putting the evidence together.

Then you get a sense of, “Wow, this person really did something they weren’t supposed to.” Or alternatively, “The allegation, it looked that way, but this person actually didn’t do anything wrong.”

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