12 RULES FOR BEING DEPOSED
Your deposition has been noted, either as a party to litigation or as a witness. You are not sure what to expect or how to act. The following will explain what to expect and how to comport yourself during the deposition.
A deposition is an opportunity for an attorney to question a witness or party to a case, while that person is under oath and while a court reporter is making a record of all of the questions, answers and statements made during the deposition. The deposition may be used to gain information or to impeach you at trial. There is no judge or jury present. your attorney (or the attorney defending the deposition, if you are a witness and not a party) may make objections. These objections are to preserve the record. You may be told by the attorney to go ahead and answer the question despite an objection. If the question that the attorney objected to is used at the trial or in a hearing, the judge will then rule on the objection. If the judge sustains (or agrees with) the objection, then the answer will not be read.
The following are list of rules to follow when being deposed:
- Remember, you cannot win your case at your deposition. While this is probably the first opportunity that you have had to explain your side of the controversy, there is no judge or jury to decide your case at the deposition. Providing incorrect or too much information can harm your case. Therefore, you should be extremely careful in what you say and how you act.
- Answer the question that is asked and nothing more. Even if you think that your answer is harmful, just answer the question asked. Do not try to elaborate. Elaborating or trying to explain will not help. Instead, it will give the attorney asking the questions more information from which to ask more questions. You will have a chance to explain your answer either upon questioning by your attorney or at the trial. You cannot speed up the deposition by elaborating on an answer to a question. Usually, elaborating on an answer extends the deposition because you have given more information from which the attorney asking the questions can base more questions.
- Listen carefully to the questions being asked. It is not unusual for a person being deposed to try to think what the next question will be. You should try to avoid this. You need to be concerned with the question that has been asked and not the next question. An attorney taking a deposition may well be asking a line of questions and if you are not listening to the question, you will answer the question that you think is being asked (based upon the prior line of questions) and not the question that was actually asked.
- Wait a full, audible second before beginning your answer. This serves two purposes. Firstly, it allows you to process the question and think about your answer before you begin speaking. This will allow you to give a well thought out answer. Secondly, your attorney may object to the question. If so, he does not want you and he to be talking over one another. Also, the attorney does not want you to be answering a question that is not a proper question before he can articulate the objection.
- Wait for the attorney to fully articulate his question before answering. (This should not be a problem if you are following Rule 4.) The Court reporter can only take down what one person is saying at a time. Therefore, you must wait for the other person to finish speaking before you speak.
- No joking. The written record will not include inflection or tone in your voice. Therefore, a joke or sarcasm will not translate on the written transcript of the deposition and, in fact, may come across in a bad way. Therefore, do not joke.
- If you do not know, with reasonable certainty, the answer to a question, do not try to figure out the answer while testifying. Answering that you do not know is a perfectly acceptable answer. However, if you give an answer that is incorrect, this may be used against you at trial or in pretrial motions. Therefore, if you hear yourself saying "I’m not sure, but ... " or "I can’t recall, but ...", stop your answer. Often these types of situations relate to dates that are being asked for, but they may relate to other types of questions.
- If you do not understand the question being asked, ask the attorney to rephrase the question or to explain a word or words that are confusing you. You are not required to and you should not answer a question that you do not fully understand.
- If you feel the need for a break, you are entitled to ask for one. The attorney may ask that you answer any question that has been asked before agreeing to break.
- If you need to confer with your attorney, you are entitled to do so. The attorney taking the deposition may ask that you answer any question that has been asked before you confer. If your need to confer relates to the question that has been asked, you can tell your attorney that that is the case and he will address it as the situation dictates.
- Dress professionally and act professionally. The attorney taking the deposition is sizing up how he or she thinks you will come across to a judge or jury at trial. Therefore the better you come across to the attorney, the more you will help your case.
- Leave your emotions at home. While this is an important matter and certainly involves a level of emotional capital on your part, you have to try to avoid being emotional during the deposition. The attorney may ask you questions or act in a way that is intended to anger or upset you. If you allow the attorney to get you upset, you will not be focusing on the questions asked and you may give answers that are incorrect. Also, see Rules 3 and 11.