A short description of a deposition, how to prepare for one, and how to conduct yourself if you are deposed.
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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.
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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.
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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.
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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.
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Objections
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.
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