You just got off the phone with your lawyer’s office who advised you that your deposition is going to be taken at a certain place, date and time. What does this mean? What is a deposition? What do I need to know? Is this going to help or hurt my case? Many questions come to mind, then a bit of panic or anxiety. That is why I am writing this post. To answer these questions and more so that you can rest easy knowing what you are getting yourself into.
First, what is a deposition? A deposition is simply testimony given while under oath. They are typically taken in a law office conference room or similar setting. They are much more informal that testimony given in a court room, though no less important. If you are a party involved in the case, then the opposing attorney(s) has the right to take your deposition. If you are a witness in a case, then the attorneys involved can subpoena you to give a deposition. The people present in a deposition typically includes the attorneys for the party’s, a representative of each party, the court reporter and the witness being deposed. Judges do not attend depositions. The court reporter is the person using a stenography machine, laptop, recorder, notepad or similar devices to take down and record everything said during the deposition. After the deposition is concluded, the court reporter will transcribe the spoken words into a transcript of the proceeding on paper in such a fashion that each page is numbered and each line on each page is numbered for easy reference. Today, most of these include an index, condensed forms and even online electronic versions of the transcript. The court reporter also places each witness under oath before the depositions begins. During the deposition, the opposing attorney is allowed to ask a series of questions that you will be called upon to answer under oath. A deposition is one of the discovery tools allowed to lawyers to discover information about the case. Therefore, the questions that can be asked cover a wide range of possibilities. Typically, they include background type of questions for each witness including full name, date of birth, social security numbers, address, employment, education, social history, etc. The questions most certainly will cover the facts of the particular case. In all cases, truthful answers are required and advised. The worst thing you can do for your case is to get caught lying while under oath. Since depositions are taken before trial, the attorney will have time to thoroughly investigate your testimony for truthfulness.
Next, what is the purpose and use of a deposition? The purpose of a deposition is so that the attorney’s involved in a given case can thoroughly investigate the facts of the case, both for and against their client. When I take the deposition of the party in a case, I want to know what their complete story is as it relates to the case and any other background information that might be useful. Also, when a deposition is taken, the testimony of that person is generally locked in for trial. This means that you now know what they are going to say at trial and can be better prepared to defend your case. Additionally, it prevents that person from changing their story at trial, or, in the event that they do, you can use the prior deposition transcript to impeach them and show that they have little credibility. These are important reasons to take depositions. Furthermore, the taking of depositions will aid both sides in evaluating any settlement potential in the case.
Finally, what types of things do I need to know before I give my deposition? There are several things you should know. In a nutshell, they are:
- Tell the truth at all times;
- Be polite to all persons present;
- Answers all questions verbally outloud, the court reporter can’t record what is said if you simply shake your head;
- Avoid the use of uhuh and unhuh as they are hard to determine whether you meant yes or no;
- Pay attention to the attorney asking you questions;
- Promptly answer the questions without trying to avoid them;
- Do not try to figure out why the attorney is asking a given question, just answer it truthfully;
- Listen to each question being asked and make sure you understand it before answering it;
- If you do not understand a given question, simply ask the attorney to repeat or rephrase the question so that you can understand it;
- If you do not know the answer, simply state that you do not know or do not recall;
- Do not be evasive;
- If your answer will implicate you in a criminal matter, you may want to invoke your right to take the 5th Amendment;
- Take your time in answering, however, do not take too long to answer or it will look like you are not being truthful;
- If you need a break for any reason, ask for one;
- If you need to speak to your attorney, take a break for that purpose;
- Do not volunteer information, only answer the question being asked and don’t elaborate;
- Do not feel uncomfortable about prolonged silence, it is often designed to get you to fill the time with unsolicited information;
- Speak clearly in a manner loud enough for the court reporter to hear you;
- Do not look at your attorney for answers, this is your deposition based on your memory;
- Beware of repetitious questions, these are designed to trip you up, answer them the same each time;
- If you are asked about questions involving the span of distance or time, make sure you state that your answer is an estimate based on your memory;
- Do not guess at the answer;
- Do not joke or kid around with any opposing attorney, they will use this to their advantage;
- Do not talk with opposing attorneys either prior to, during or after the deposition as anything you volunteer can be used against you;
- Be careful of any “off the record” discussions, the attorney can use these once you go back on the record;
- Do not argue with the attorney;
- Do not lose your temper, do not shout;
- Dress as you normally would for work, unless you’re a stripper;
- Be on time;
- If, at any point during the deposition, you realize you answered a question incorrectly, correct it promptly;
- If you are provided documents to look at, review them carefully;
- Assist your attorney in preparing for taking your opponents deposition by providing them with questions to ask;
- Depositions can be very expensive, you have to pay your attorney for his/her time, the court reporter for their per diem, costs of the original transcript and/or copies, expert witness fees can all end up being in the thousands of dollars;
- Do not attempt to outsmart the attorney.
In my years of practice, I have taken hundreds of depositions in a wide variety of cases. Several stand out in my mind as being unusual. There was the divorce case in which the parties had been married for 62 years and they got into an argument during their deposition over their lack of a sex life over the preceding 20+ years. There was the client that took 10 minutes to formulate an answer to each and every question, only to ask the attorney to rephrase the question. After 2 days of this, I was ready to jump out of the window. Then there was the divorce case where the wife took the 5th Amendment 652 times. Or the civil case where the elderly woman was testifying about her criminal background and stated, “well, there was that one time on the ’70’s when I was arrested for prostitution.” Many instances involving pictures or videos of a sexual nature being introduced and discussed, including the testimony of which vegetables make the best sexual toys. Some of the stuff I’ve heard simply can’t be made up. Sometimes they are dull and sometimes they are very entertaining. Always, they are worthwhile.
In closing, a deposition is simply a tool used to find information. If you tell the truth, you have nothing to worry about. The key is to be prepared before the deposition, review your notes, pleadings and, most importantly, go over everything with your attorney. Once you’ve taken these steps, there is nothing for you to worry about.