Deposition Basics – What You Need To Know
BackgroundIn most states, each party in the lawsuit has the right to take the discovery deposition of other parties to the litigation as well as the deposition of third-party witnesses (non-parties) and experts retained by a party. In its simplest form, a discovery deposition is the oral testimony of a party / witness taken under oath before a trial.
A deposition, properly given, can go a long way in assisting your attorney in handling your lawsuit, either by way of settlement or at trial. What you do at the deposition can help or hurt your claims or defenses depending on your attitude, truthfulness, appearance, and testimony. As a result, carefully preparing for a deposition is vital to your case.
Tell The TruthThe first rule of any deposition is to tell the truth. During a deposition, you are testifying under oath just as you will at trial. If you lie (perjure yourself), not only do you risk jeopardizing your claims or defenses, but you may also be impeached during trial as well as face severe sanctions from the Court.
Confer With Your AttorneyIf you are a party in litigation, you will likely first learn from your attorney that another party in the lawsuit wants to depose you. Ask the attorney to send you a copy of the Deposition Notice. Confer with your attorney about the date / location of your deposition. Additionally, you will want to meet with your attorney in person several days before the deposition to discuss rules and procedures as well as the types of questions you may be asked. Good preparation is vital and focusing on areas of potential questioning is important. Also, remember, anything you and your attorney discuss in preparing for the deposition as well as during the life of the lawsuit is privileged and confidential and should not be raised during the deposition.
If you are a third-party witness served with a subpoena, contact the attorney who subpoenaed you. They may be willing to accommodate your need to change the date / location. You may also have your own attorney present at the deposition.
The DepositionDeposition testimony is taken down by a court reporter and transcribed for future use in the lawsuit. Be aware that any testimony given during the deposition may be used to impeach your credibility at the time of trial if your testimony changes later (i.e. during the deposition in a car accident case, you testify the street light was red and later you change your testimony to say the street light was green).
At the deposition, you will sit between the court reporter and your attorney. The opposing attorney will sit across the table from you and ask you questions and/or show you documents. Carefully listen to each question and if you do not hear it or do not understand it, ask that the question be asked again or rephrased. If you are shown documents, take your time to review the entire document and reflect on its contents before responding.
Remember, you do not need to be rushed or bullied by the questioning attorney.
What To Remember & How To BehaveIt is important that you make a good impression upon opposing counsel. Dress appropriately and remember to treat all persons in the deposition room with courtesy and respect regardless of how intense questioning may become. However, try to avoid becoming too friendly with any of the other attorneys.
Additionally, remember the following basics:
o Do not be afraid of the lawyers.
o Never lose your temper.
o Do not interrupt the opposing counsel.
o Take your time. Think about the question before answering it and allow time for your attorney to make any objections if necessary.
o Speak slowly and clearly.
o Answer all questions directly. Give concise answers to the questions.
o Stick to the facts and testify only about things that you personally know. Do not speculate or guess if you do not know the answer. If you are estimating, say so.
Attorney ObjectionsMany witnesses are confused when the attorneys begin making objections during a deposition. However, attorneys must make objections on the record during a deposition to preserve the issue for a time when a Judge can rule on it. If your attorney is objecting, listen to the objection as it may give you some insight regarding a problem with the question.
In rare cases, your attorney may object to the question and advise you not to answer. If this happens, heed the advice and do not answer the question. Situations when your attorney may typically instruct you not to respond occur when a question calls for a response that may require you to provide confidential or privileged information.
End Of The DepositionAt the conclusion of the deposition, the attorneys will typically stipulate to various things including how long the witness has to review the transcript and who will retain the original. If you are confused, speak to your attorney in private. When you eventually review the deposition transcript several days later, you will be able to make corrections on a separate errata sheet. Remember, if you make significant changes, you may be confronted with the changes at the time of trial.
ConclusionSome people get extremely nervous about depositions. The best way to look at a deposition from the plaintiff's perspective, however, is to see it as an opportunity to tell your story and to do so in a way that convinces the opposing party that you are an honest, strong witness with solid claims. If you are a defendant, you should look at the deposition as an opportunity to explain why the plaintiff's claims are baseless or why you have a valid defense for your actions. Either way, remember that you have control in a deposition and it is in your best interest to prepare with your attorney so as to provide strong, convincing, and truthful testimony.
DisclaimerThis material is for informational purposes only and does not constitute legal advice or an attorney-client relationship. Please be mindful the law changes over time. You should always consult a licensed attorney based on the specific facts of your situation.