Preparing for a deposition
A Guide to Understanding the Process and Avoiding the Pitfalls
Depositions are conducted by parties to a legal action to obtain information that cannot as readily be learned through written records or general investigation. During a deposition, the lawyer for one side orally questions a witness on the opposing side. In addition to the defendants named in a lawsuit being deposed, others called to deposition can be fact witnesses.
During a deposition, each side learns facts and makes judgments about the arguments and evidence supporting their opponent's case. Testimony at the deposition can potentially weaken the defense of a case, lead to an early settlement, or even encourage the plaintiff to name additional defendants. On the other hand, a well-prepared witness who presents convincing testimony at deposition may compel the other side to drop its legal action.
Basics What is a deposition?
A deposition is a formal legal process in which question are asked and answers obtained. Oral testimony is taken under oath and every word spoken is transcribed. The transcription may be introduced in court as evidence if the case proceeds to trial. Depositions are usually conducted during ordinary business hours and may last from a few hours to more than a day.
Attorneys may ask any question that might lead to the discovery of admissible evidence, provided that answering it does not require disclosure of privileged information. Answers must be consistent and, above all, truthful. Knowingly making a false statement in a deposition constitutes perjury.
What is the purpose of a deposition?
The purpose of a deposition is to investigate the facts and issues about both the event that is the subject of the lawsuit and the deponent's background. The process is also used to assess the credibility and demeanor of the witness.
A plaintiff's attorney generally uses the deposition to elicit information that may not be contained in the written record. The more generous a witness is with information pertaining to the facts and people in the case, the less investigation the plaintiff's attorney will have to conduct.
The witness's appearance, professionalism, and demeanor are gauged throughout the deposition. Information and observations gained from the deposition are used by the opposing side to develop additional lines of questioning and to plan strategy for a possible trial.
Where is a deposition taken?
The deposition is usually taken in the opposing attorney's office. While your office may seem more convenient, the likelihood of problems occurring is greater. For example, files or reference materials in open view could be observed and recorded by the plaintiff's attorney.
What should I bring?
You may be required to bring certain materials to the deposition.
Bring only the documents specifically requested in the subpoena. Do not bring any other records or personal documents. Review the records to be sure that they do not contain any additional material that was not requested.
Who is present?
- You (the deponent)
- Your attorney
- The opposing attorney
- The court reporter
- The plaintiff (occasionally)
Preparation and a predeposition meeting with your attorney are essential. The level and type of deposition preparation will depend upon whether you are an expert witness, a consultant, or a defendant. If you are to appear as an expert witness or a defendant, your preparation will be significantly more extensive.
Who gets deposed?
Any person with knowledge that relates to the case. Parties to the lawsuit, witnesses to the incident in question, consultants, and expert witnesses all may be deposed.
How is a deponent notified?
If you are named in a lawsuit, your attorney will receive the notification of the deposition and contact you. A party to the suit does not need to be served with a subpoena. A "Notice To Take Deposition" is the only document necessary to require your attendance.
Generally, if you are not a party to the lawsuit, you can only be compelled to attend a deposition by subpoena (a document seeking to have a witness give testimony or produce certain documents at a specific date, time, and place).
Ask your attorney whether or not you should review records relative to the incident issue in question. You may be advised not to refresh your memory and to (honestly) testify that you do not recall certain facts. Do not alter records in any way. Changes made to the record could be cited by the other side as an admission of guilt.
Pre-deposition Meeting With Your Attorney
Communication with your attorney is essential and privileged. Contents of your discussions cannot be obtained by opposing counsel. If you are named in the suit, ask your attorney what allegations have been made against you and on what basis. Your attorney may decide to obtain the plaintiff's deposition testimony first so you can review that testimony in preparation for your own deposition. You may be advised to review certain records, obtained through the discovery process, in order to better acquaint you with the issues.
In advance of your deposition, your attorney will schedule a pre-deposition conference to plan your defense and discuss the questioning process. In complex cases, several meetings may be needed. If you feel uncomfortable about any of the potential questions, or are aware of possible weaknesses in your case, discuss these concerns with your attorney during the predeposition meeting. Inform your attorney of all relevant papers, notes, and conversations relating to the case. Discuss all the important information you recall during the pre-deposition meeting. Your defense will be more successful if your attorney is fully informed about the case.
What to Expect A certified court reporter administers an oath to the deponent and transcribes the testimony. The opposing attorneys generally are cordial with each other at the beginning and the questioning will appear relaxed. The initial relaxed appearance of a deposition may be misleading. The plaintiff's attorney might suddenly ask you a startling question. An unprepared witness can easily be shaken by this tactic.
Your attorney will be with you throughout the deposition to raise legal objections, if needed, and to discuss the progress of the deposition with you during breaks. He or she will listen to every question and object to those that probe into privileged communications. Your attorney may also ask you questions to help you clarify a previous answer.
After a question is asked, allow your attorney time to interject. Your attorney can object to specific wording or advise you not to answer an improper question. Some objections are raised to alert you that a question is dangerous because of vagueness, incompleteness, or argument. Listening closely to the objections can provide you with insight into how to approach the answer.
Do not misconstrue silence to mean that your attorney is not advocating for you. Attorneys may only object to irrelevant or improper questions. The number of objections will probably be small.
Often the same question will be asked several different ways. The questioner may try to force you to be as accurate and precise as possible. If you make any statements that are inconsistent with any prior statements, the inconsistencies may be used to discredit your testimony. Completely honest and succinct answers leave less room for confusion.
Certain predictable questions will likely be asked at the start of your deposition. These initial questions are fairly straightforward and not intimidating. They are asked to obtain basic information and to relax the witness for further testimony. However, simple questions may be interspersed with "loaded questions."
- Do not try to memorize answers. Familiarize yourself with the types of questions that may be used to confuse you. If you are aware of the potential pitfalls and know how to handle them, you will be better prepared to answer appropriately.
- Admit that you consulted with your lawyer. Lawyers and clients may confer as needed. If opposing counsel asks, "Did your lawyer tell you what to say at this deposition?" you may answer, "My lawyer told me to tell the truth." Do not answer questions about any conversations between you and your attorney. Such conversations are privileged and not subject to disclosure. If the topic is raised, give your attorney an opportunity to object.
- Listen carefully. Do not interrupt the questioner. Do not finish his or her sentences or try to predict what will be asked of you. Your answers must be appropriate for the questions as asked, not as they should have been asked.
- Do not answer incomprehensible questions. The tendency is to assume what opposing counsel meant and then answer. If the plaintiff's attorney asks a question that does not make sense, ask the attorney to restate the question.
- Pause before answering. Think (silently) about the question before responding. A pause also gives your attorney a chance to object to the question, if needed. If you answer before your attorney has a chance to object, you might be volunteering information that could damage your defense.
- Be clear and concise. Speak directly towards the court reporter transcribing your testimony. The recommended answers are: "Yes," "No," "I do not know," "I do not recall," or "I do not understand the question." While these responses may frustrate the questioner, they are valid and acceptable.
- Do not over-answer. For example, the ideal answer to "Do you have the time?" would be, "Yes." You do not need to expand by replying, "Yes, it is 3 p.m." When one of the five recommended answers is not sufficient, be as concise as possible. Take the position that each word will be scrutinized. Too much information, too soon, gives the other side time to plan additional questions. Longer answers make for a longer deposition.
- Be honest and accurate. If you are unsure or do not know the answer to a question, say so.
- Do not speculate or guess. You probably will not be able to remember every detail relating to the incident at issue. If you cannot remember something, say so. Assumptions or estimates could come back to haunt you.
- Do not fill in gaps of silence. Some attorneys deliberately allow long gaps in questioning in hopes of making you volunteer information. If your answer is complete, do not feel pressured to continue talking. The transcript of the deposition only shows the words spoken, not gaps or silence.
- Use neutral language. Do not risk offending anyone who might see remarks in the transcript regarding gender, race, national origin, etc.
- Avoid speaking in absolutes. "Not that I can remember" is a better answer than, "No, never." Never or always provide the opposing attorney an opportunity for strong cross examination.
- Do not tip off the opposing counsel. Avoid mention of documents unless opposing counsel mentions them first. If you cannot recall information without looking at a document that has been introduced, indicate only the fact that you do not recall.
- Listen for compound questions. You may be pressed to answer two or more combined questions with one "yes" or "no" response. Insist on the opportunity to answer each one separately.
- Expect similar questions. Pay attention to questions that resemble those you were asked in any prior depositions or in previous testimony in the same court. Opposing counsel may be testing to see if you give a similar response or state a different opinion. The opposing attorney may ask the same question in many different forms to try to elicit varied answers.
- Every question is important. The opposing attorney will carefully plan the timing of the most important questions. Be aware that they may be saved for the end of the deposition or posed at a time when you are flustered or tired.
- Pay careful attention to summaries of your prior statements. The opposing attorney might summarize your previous statements to persuade you to agree with something that is not completely true. Do not agree with a summary of your testimony unless it is exact.
- Hide your anger. Do not argue with your attorney or the opposing attorney. Remember that your deposition testimony could eventually be heard by a jury. Attorneys are generally pleased if the opposing witness demonstrates anger or rudeness. A negative attitude may be magnified in writing. An angry or snide comment may sound twice as bad when read from the transcript. Stay calm and in control of your emotions. A witness who is polite and sincere can discourage the plaintiff's attorney.
- Avoid showing outward signs of exasperation, boredom, or fatigue. Even though the questioning may seem far too extensive or irrelevant, control your expressions. If you feel tired or ill, a short break or the adjournment of the deposition until another day can be arranged.