How to Prepare for a Deposition

Read our previous blog posts: Basics of A Personal Injury Case or Basics of a Medical Malpractice Claim to further understand the litigation process.

What is the deposition and what is the purpose?

The deposition is part of the discovery process in a lawsuit. A deposition is the taking of sworn testimony by a potential witness in a trial. It is utilized to preserve testimony for a trial and to prepare for trial. A deposition can be utilized as evidence in a trial absent any objections to the respective portions of the deposition. A deposition is utilized to avoid surprise at the trial, and to preserve testimony while it is still fresh (since the trial is often months after the deposition). If a witness cannot be present at trial, the deposition can be read into evidence at the trial. A deposition can also be utilized to impeach a witness if his testimony is different during trial. Many of the questions will not be admissible during a trial, but you still have to answer, because the answer may help the attorney prepare their case for trial.

Preparing for the deposition

A deposition requires concentration and can be very tiring, so you should be sure to get a good night sleep before your deposition. Unless your lawyer advises you to do some type of preparation, you should not do anything to prepare for the deposition. Do not take it upon yourself to research or review documents prior to your deposition without first discussing it with your lawyer. Don’t bring any documents to the deposition unless you have discussed them with your attorney and he has specifically instructed you to bring them. You should come to the deposition dressed as if you are testifying in court.  Remember, the opposing counsel is attempting to size you up as a witness and you should try to give the best impression possible.

Your Conduct

You should try to make every attempt to conduct yourself in a professional manner at your deposition both while you were under oath and while you are anywhere you can be seen or heard by opposing counsel or other parties. Do your best to avoid displays of anger or frustration toward opposing counsel or other parties and you should not speak to opposing counsel œoff the record or outside the deposition room in any manner. It is best to confine yourself to the answers you are required to give while under oath during the deposition. The lawyer questioning you will be carefully watching your demeanor during the deposition to assess the effect you’ll have a jury. He or she may attempt to rattle you to see how you react. Regardless of the tactics employed by the opposing lawyer, you should avoid being defensive or angry. Do your best to remain calm.

Oath

When the deposition begins you’ll be asked to raise your right hand and “solemnly state the evidence you are giving in this matter is the truth, the whole truth and nothing but the truth so help you God.” This is the same thing you would state if you were testifying at trial.  When testifying under oath, you are testifying under penalty of perjury. This means you’re legally obligated to tell the truth. While it is uncommon, it is possible for a witness to be convicted of perjury if it can be proven that they lied.  As long as you testify truthfully there’s no need to be concerned about perjury.

Content

Lawyers are permitted to question witnesses about a wide variety of things and subject matters during depositions. They’re permitted to ask questions that are not only directly relevant to the lawsuit, but they may also ask questions that could lead to other evidence that is relevant lawsuit.

Only testify from your knowledge. Do not guess.  If you don’t know or don’t remember, I don’t know or I don’t remember are not just acceptable answers, they are the best answers. In most cases the incident that is the basis for the law suit that requires your deposition happened months, if not years, prior to your deposition. Although the opposing attorney may try to convince you that you should remember every detail, nobody really expects you to be honestly able to do so. If you guess and you later realize you guessed wrong, when you try to correct it at the trial the opposing attorney will use your deposition testimony to raise questions to the jury as to your truthfulness.  If you don’t know or don’t remember at the time of your deposition and you say so, when you later learn of some fact or remember it, you can explain how this happened at trial without the opposing attorney being able to imply that you were either lying at your deposition or at the trial or both.

Be wary of questions summarizing your opinions or earlier testimony especially if it is not totally accurate. The attorney can ask you œloaded inaccurate questions, so listen carefully for any misstatements. Be very wary of questions that start, œDon’t you agree or œIsn’t it true. Be wary of compound questions. If you are confused by a complicated question, ask to clarify the question.

Answer each question with the information necessary to provide a truthful response. Beyond that, do not volunteer any additional information. If you can answer the question by simply saying œyes or œno, do so. Do not attempt to educate the opposing lawyer or tell your story because you don’t think you’re being asked to write questions. If the opposing lawyer does not ask right questions he is not entitled to the information. Limit your answers the specific question asked. Be as concise as possible when answering questions. If they have questions to be answered with a yes or no, do so. Do not anticipate the next question and provide an answer to it; you may not be asked that question.

Don’t feel the urge to answer questions quickly. There is no time limit for you to answer, and unless the depositions is videotaped, the deposition transcript will not indicate how much time it took you to answer. The best way to ensure a good record is to take your time, listen to the questions carefully, formulate your answers in your head, and only then give your answers verbally.

A common tactic the opposing attorney may use to get you to say more than you have to is œthe long silence. In œthe long silence strategy, the opposing attorney asks you a question, you answer, and then he sits quietly and looks at you for several seconds. Most people have a natural inclination in this situation to fill in the silence by adding to their answer. The opposing attorney is relying on this inclination. Fight this inclination.  Be patient.

You are entitled to a fair question. If the definition of words is unclear, interrogate the interrogator. “What do you mean by….?”

Answer audibly. Head nods are not able to be put onto the transcript. Answer yes or no, not uh huh or nu huh.

Do not look to your attorney for assistance in your answer. You must provide the answer, not your attorney.

Do not make definitive limiting statements that limit your future answers, such as That’s the whole story or Nothing else happened. Avoid words such as always, all, never, and ever.

Objections

During most depositions lawyers will make objections. Lawyers must object to questions he/she believes is improper in order to the preserve the objection for the  judge to rule on it. Since there is not a judge present at the deposition, objections are stated for the record and the deposition continues. The exception is if your lawyer makes an objection and instructs you not to answer the question. If this happens, follow your lawyer’s instruction and don’t answer the question.

After the deposition

If you discover errors or additional information, inform your attorney.

In sum, be truthful, honest, earnest, and fair, and treat all parties with respect, and you will be successful in your deposition.

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