THE DEPOSITION NOTICE
A party wishing to take a deposition must provide a written notice outlining the request. A Notice of Taking Deposition is a formal document that states the date, time and location of the deposition. The Notice of Taking Deposition also identifies the person or party to be deposed and any documents the person or party is being asked to bring to the deposition.
Depositions almost never occur in court or at a court facility. Depositions generally occur in conference rooms, which may be in law firms, businesses or court-reporting facilities. Depositions generally begin a 9:00 AM. If the deposing attorney has requested a video transcript, a camera and microphones will be supplied. Generally, water and coffee are readily available. Business casual attire is generally appropriate for the person being deposed.
At a deposition, the participants generally include the following: 1) a court reporter, 2) the attorney taking the deposition (asking questions), 3) the attorney defending the deposition (making objections to improper questions), and 4) the deponent (party being questioned). Generally, there are no fewer than these four people in the room. Additionally, the opposing party may wish to be present, or there may be multiple defendants (or plaintiffs), each of whom will likely have an attorney present at the deposition. Likewise, in a video deposition, a videographer (separate from the court reporter) will be present.
A deposition begins with a statement on the record by the court reporter that includes 1) the court reporter’s name and business address; 2) the date, time and place of the deposition; 3) the name of the deponent; 4) administration of the oath or affirmation to the deponent; and 5) an identification of all persons present. When these steps have been completed, the deposing attorney asks the deponent questions on the record until the deposition is completed. Restroom and lunch breaks are taken at appropriate times. After the deposing attorney has completed his or her questioning, the defending attorney may ask some questions of the deponent, although this is not required.
PREPARING FOR THE DEPOSITION
It is important that the deponent be prepared. A prepared deponent is less easily thrown off by an unusual or uncomfortable question or line of questioning. Comfort with the process is generated when the deponent understands the process and knows what to expect. But whether anticipating their first deposition or their fifth, deponents also benefit from understanding (or being reminded of) the practices that promote clarity and allow deponents to tell their stories. Ultimately, the goal is to create a clear record, and some level of preparation is necessary to achieve that goal.
Consult with a trusted litigation attorney. Litigation attorneys are skilled advocates who are trained to obtain information from people who do not want to provide it. The lawyer deposing you may push boundaries or seek different admissions if you are not represented by an attorney. Without your own litigation attorney at the deposition, you are exposed to a variety of risks that are unique to your situation. An attorney can advise a deponent on risk, help the deponent prepare and attend the deposition with the deponent to prevent abuse by the other lawyer.
Be ready. Read and review key documents beforehand so youaren’t caught off guard by dates, events, who was present atameeting, etc. Make sure you have a good working knowledge of the dates referenced in the Complaint and when you had interactions with any adverse party in the litigation.
Read the pleadings (Complaint, Answer, Counterclaim, etc.) beforehand and be familiar with what they allege. If you have a question about what something means. Questions about the pleadings may be objectionable, and if they are, your attorney may object.
Te llyour attorney about any recent developments before the deposition.
Listen carefully to the question.
Answer “yes" or “no" when appropriate.
Don’t speak too quickly.(Court reporters appreciate this.) Feel free to take your time answering the question (it gives your attorney time to object if necessary). Additionally, remember that a slow, methodical answer is indistinguishable from a speedy one, at least in a written transcript.
Don’t interrupt. Wait for the entire question and don’t interrupt the other attorney. (Court reporters appreciate this too.) The tendency is for deponents to jump on the first part of a question without letting the attorney finish. This can create a confusing record, and it can cause mistakes in the transcript.
Avoid active listening. Active listening is common in everyday conversation and is generally a matter of courtesy. However, it should be avoided during depositions. Active listening involves verbal cues from the listener indicating that he or she is following the speaker, i.e., “yes," “uh-huh" and “O.K." Deponents should avoid these cues because they lead to a disjointed record. Remember that the court reporter is responsible for recording everything said on the record. As such, even these verbal cues must be included, generally by inserting them into the question. Unfortunately, these cues can also be misconstrued as affirmative responses when they were simply intended by the deponent to mean “I’m with you" or “I understand the question so far."
Don’t joke. While tone and demeanor may appear in a video transcript, they do not appear in written transcripts. Jokes on the record, particularly to the extent they may reference off-the-record conversations (during breaks) or other unrecorded discussions, do not translate very well.
Avoid sarcasm. In the same vein, avoid answering a question with a question.
Testify only to facts of which you are certain. At trial, opposing counsel can point out differences between what you said at the deposition and what you say at trial, so don't say anything unless you are sure about it.
Correct any misstatements or faulty assumptions as soon as you realize them.
Limit conversations in the deposition room while off the record. Any conversations in front of opposing counsel may be the subject of additional questions or discovery. Limit conversations to very light topics, i.e., weather, sports and family vacations. The same rule applies to communications with the court reporter (who is generally hired by the attorney taking the deposition).
Be precise. Recognize beforehand that “I don’t recall" and “I don’t know" are different answers. Be sure to use them only when those answers accurately answer the question. You should understand too that “I don’t recall that" could be interpreted to mean a number of things, i.e., you don’t remember, you don’t know, or you recall something, but not the specific fact the questioner is referring to. To the extent possible, try to be specific and precise so the record is clear later.
Carefully examine documents before you testify about them. If you’re asked to review a document, don’t assume that you’ve seen it before. The version you’re handed may include hand-written notes or other information that you haven’t seen before. Take your time to review each page of a document before talking about it or admitting that you’ve seen it before.
Carefully identify documents when you testify about them. When your answer includes reference to a document, use the formal name of the document (or Exhibit number) rather than nondescript pronouns, i.e., “it says" or “they state." If you’re looking at a specific part of a document as you speak, make sure you say that on the record so it’s clear what part you were referring to when the transcript comes back later. By speaking the page numbers, paragraph numbers and other descriptors (i.e., top, left portion, next to the word “Conditions") during the deposition, you will create a superior record for use later in the litigation.
Don’t agree to provide documents without consulting with your attorney.
Look for compound questions with faulty assumptions. For example, be aware of questions like “When did you stop cheating on your taxes?" or, “How many weeks were you aware of the fraud before you reported it?" If you don’t understand a question or are uncomfortable with the way it’s phrased, ask the attorney to rephrase it. If your attorney hears a question that is compound or otherwise objectionable, your attorney may object to form, but you can certainly ask that a question be rephrased if you don’t understand it or are uncomfortable with its phrasing.
Be aware that you will still need to answer most questions to which your attorney objects. The objections are made for the record, but you will still need to answer the question unless your attorney instructs you not to answer.
Don’t underestimate opposing counsel. You may not be impressed with what you’ve seen so far, but don’t allow that to impact your preparedness.
Don’t argue with opposing counsel (or lose your temper).
Be respectful. This can be very difficult in polarized litigation, particularly for deponents with much at stake, but this rule is very important.
Remember that while strategies and tips are useful, they are simply tools designed to assist deponents in telling their stories in a clear, precise manner. Deponents who carefully listen to each question and truthfully respond generally do quite well with the deposition process.
If you are not a client of Dougherty, Molenda, Solfest, Hills & Bauer P.A. (“Dougherty Molenda"), please note that an attorney-client relationship with Dougherty Molenda may be established only through a retainer agreement or engagement letter signed by an attorney of Dougherty Molenda. We reserve the right to decline any representation. We may be required to decline representation if it would create a conflict of interest with our other clients.