What Is A Deposition? Why are they Taken?
A deposition is part of the discovery process in a lawsuit. It is the examination of a witness under oath, outside the courtroom, with the witness’s testimony being recorded by a certified court reporter. The purpose of the deposition is to allow the lawyers for the parties in a lawsuit an opportunity to learn what a witness knows about the facts and issues pertinent to the lawsuit. With certain exceptions, lawyers may take the deposition of any person whom they believe has knowledge pertinent to the issues in the lawsuit. Depositions are sometimes taken to simply learn what a witness knows. They may also be taken to preserve testimony if there is some reason to believe a witness may not be available when the case goes to trial. In such cases, the recorded testimony, or transcript, may be used at trial as if the witness is testifying in person. Lawyers at trial may also use the deposition transcript to show inconsistencies in a witness’s testimony.
Should I Prepare For My Deposition?
A deposition requires intense concentration and can be extremely tiring for witnesses, so you should avoid the use of alcohol and drugs and be sure to get a good night’s sleep before your deposition. Otherwise, you should not do anything to prepare for your deposition unless your lawyer asks you to. In particular, do not take it upon yourself to do research or review documents in preparation for your deposition without first discussing it with your lawyer. You should come to the deposition dressed as you would if you were testifying in court. If you are a professional you should wear business attire. If you don’t normally wear a suit and tie you should dress in nice casual clothing. Remember the opposing counsel is attempting to “size you up” as a witness, and you should try to give the best impression possible. If you have any questions about how to dress for your deposition ask your lawyer.
Your Conduct At The Depostion.
You should make every attempt to conduct yourself in a professional manner at your deposition, both while you are under oath and while you are anywhere where 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 about the case off the record, outside the deposition room, or in any casual manner. It is best to confine yourself to the answers you are required to give while under oath during the deposition. The opposing lawyer will be carefully watching your demeanor during the deposition to assess the affect you will have on the jury. He 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 combative. If you rise to the bait he will have achieved his goal. Do your best to remain calm and poised, regardless of the nature of the questions asked.
You Are Testifying Under Oath
When the deposition begins you will be asked to raise your right hand and “...solemnly state that the evidence you shall give in this matter is the truth, the whole truth, and nothing but the truth, so help you God.” This is the same oath that you would take if you were testifying in a courtroom, and it means that you are testifying under penalty of perjury. This means you are legally obligated to tell the truth. While it is extremely uncommon, it is possible for a witness to be convicted of perjury if it can be proven that they willfully lied while under oath at a deposition. As long as you testify truthfully there is no need to be concerned about perjury. Lawyers are permitted wide latitude in questioning witnesses at depositions. They are permitted to ask questions that not only are directly relevant to your lawsuit, but they may also ask questions that could lead to other evidence that is relevant to the lawsuit. Listen closely and respond carefully to any question asked.
During most depositions lawyers will make objections. Lawyers must object to questions they believe are improper in order to preserve the objection for a time when a judge can rule on it. Since there is no 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. There are many objections lawyers can make during a deposition, and some are made more frequently than others. Your lawyer’s objections may be a cue to you that the question is problematic for one or more reasons. For instance, a common objection is “vague and ambiguous.” If your lawyer makes this objection it may alert you to something about the question that needs clarification. If so, you can ask that the question be rephrased to enable you to answer it.
Never Guess In Response To A Question!
Only testify from your own knowledge. You know information if you have received it through one of your five senses. If you are asked a question that requires you to guess or make assumptions, your answer should be “I don’t know.” Speculation is another form of guessing, and it is strictly prohibited. Your lawyer will not allow you to answer questions that require you to speculate. The lawyer taking your deposition is entitled to an estimate in response to his questions, if you are able to give one. Generally estimates can be given when referring to dates, times, distances, quantities, and the like. An estimate differs from a guess in that you have some basis for giving the estimate. If you are estimating in response to a question, you should state that, and be sure that your estimate is not simply a “guess.”
Only Answer Questions That Are Asked.
Never offer information during your deposition that is not in direct response to a question. Do NOT attempt to educate the opposing lawyer, or “tell your story,” because you don’t think you are being asked the right questions. If the opposing lawyer does not ask the right questions he is not entitled to the information. It is in your best interest if there are gaps in the story, because the opposing lawyer will be hindered in her trial preparation. Limit your answers to the specific question asked. Be as concise as possible when answering questions. If the question can be answered with a “yes” or “no,” do so. Do not anticipate the next question and provide an answer to it; you might not be asked that question. For example, the question, “Do you know what time you arrived here this morning?” should elicit the response: “yes”. Do not respond to that question by providing the time you arrived; you would only give that response if the question was, “what time did you arrive?"
Take Your Time.
Don’t feel the urge to answer questions quickly. There is no time limit for you to answer, and unless the deposition 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. Hasty responses result in mistakes. It is better to be slow and deliberate in giving your testimony. In addition, by slowing down your response time your lawyer will have a better opportunity to voice any objections she has to the questions. If you respond too quickly, your lawyer may have to interrupt you to make an objection on the record. Depending on the nature of your testimony, it is possible that a line of questioning may upset you, or make you angry. If so, and particularly if it interferes with your ability to concentrate on the questions, tell your lawyer you need to take a break.
Always Follow Your Lawyer's Instructions During A Deposition.
Do not attempt to do your lawyer’s job. Your lawyer knows the legal and evidentiary implications of your testimony, and may make decisions during the deposition that will require giving you instructions on the record. As stated above, your lawyer may instruct you not to answer a question. Always follow your lawyer’s advice and do not answer the question. The opposing lawyer may attempt to intimidate you by telling you a judge could find you in contempt of court if you don’t answer the question. Don’t pay attention to such comments; you cannot get into trouble by following your lawyer’s instructions. Always follow your lawyer’s instructions at a deposition.
Ask Questions and Frankly Discuss Your Concerns with Your Lawyer
Your lawyer may have a pre-deposition meeting with you. She will discuss the important facts and issues in the case. You will be advised of the kinds of questions you may be asked by opposing counsel. You should raise any concerns or questions you have pertaining to the case or your testimony. Also, if you have a criminal record, no matter how minor, you must inform your lawyer of this fact. Your lawyer will decide whether any action can or should be taken to maintain the confidentiality of this information. Remember that your lawyer can only do his job if he is provided complete and accurate information. For that reason it is important that you be frank with your lawyer. Some witnesses think that if they don't tell their lawyer, the other side won’t find out. This assumption invariably proves wrong, sometimes with disastrous consequences to the lawsuit. If your lawyer knows all of the facts he can devise a strategy for dealing with them.