WHY AM I BEING DEPOSED?
Every party in litigation has the opportunity to conduct discovery, which is just what it sounds like – a chance to discover all of the evidence that might be relevant to the case. Discovery allows all of the facts and evidence to come to light so that the parties can try to settle the case or, if settlement attempts fail, prepare for trial. The surprise witnesses and new evidence that are often portrayed in courtrooms in the movies are entertaining, but not real life. Through the process of discovery, all of the existing facts and witnesses are revealed well before trial ever begins.
One important tool of discovery is the deposition. A deposition is oral testimony, given under oath. Testimony at a deposition is very similar to testimony on the stand at trial. You will be represented by your attorney. The other party’s attorney will ask you questions. Your answers will be given under oath and must be truthful. Any answers you give can be used against you later in the case, should contradictory evidence come to light. And a court reporter documents the proceedings. Unlike testifying at trial, however, the judge is not present during a deposition. And, the deposition takes place at an office, not the courtroom.
You are being deposed because you have information relevant to the dispute at hand. The answers you give are very helpful for the other party’s attorney. The attorney has the chance to ask you questions and learn what you know about the case. The attorney may ask questions to try and determine whether you are lying about or omitting facts.
Your attorney will likely schedule depositions for the other party and/or witnesses. Sometimes there is a strategy for the order of who is deposed. Often, however, the order is determined by scheduling convenience. So, unless your attorney tells you otherwise, you should not read too much into being deposed before or after other individuals.
WHAT WILL HAPPEN DURING MY DEPOSITION?
You, your attorney(s), the other party’s attorney(s), the court reporter, and sometimes the other party will be present at the deposition.
First, the court reporter will swear you in. After that, the other party’s attorney will tell you the rules of the deposition. Most often, the rules are along the lines of, “tell the truth, tell me if you do not understand a question, wait for me to ask the question before you answer, and give verbal answers as opposed to nodding your head.”
The attorney will then ask you some general questions about yourself. Name, address, job, that sort of thing. He or she will then ask you questions that relate to the dispute. If your deposition subpoena came with a request to produce documents, the attorney will ask you to hand over any documents requested and will ask you questions about them.
If you do not understand a question, do not answer it right away. Either ask the other attorney for clarification, or ask to speak with your attorney about the question.
Your attorney will usually not ask you questions during the deposition, unless she needs to help you clarify a previous answer. Sometimes your attorney will object to a question. If your attorney objects to a question, do not answer it until your attorney tells you to do so.
The deposition can last the whole day. There will typically be breaks for lunch, restroom, etc. If at any point you need to take a break, tell your attorney.
After the deposition is finished, the court reporter will type up a transcript of the deposition. Your attorney will send you the transcript when it is complete, and you will have a chance to review it and prepare an Errata (a document that points out any small errors like typos in the transcript).
HOW CAN I PREPARE FOR MY DEPOSITION?
If the deposition subpoena came with a request for production of documents, make sure you work with your attorney to gather all of the requested documents, and bring them with you to the deposition. Otherwise, there is nothing you need to do to prepare. Do not rehearse answers or bring with you any documents or evidence other than what has been requested in the deposition subpoena and approved by your attorney.
Dress appropriately for the deposition, in modest and clean clothing. This is especially important if your deposition will be videotaped. Be sure to groom yourself neatly and be at the deposition location right on time.
- Be honest. Lying during a deposition is perjury. That is a felony. The other party can use your testimony at the deposition later in trial. If you lie and they discover your lie, they can usually use that information to portray you as dishonest and untrustworthy to the judge and jury. Your attorney cannot and will not help you lie. If your attorney hears you tell a lie, he is obligated to withdraw from representing you.
- Understand the question. Listen carefully as the attorney asks the question. Do not interrupt or interject. Let the attorney fully ask the question. Take your time answering. Think about the question carefully. If you do not understand it, either say, “I do not understand the question” or quietly ask your attorney for clarification. Do not be embarrassed if you do not understand part of the question. If the attorney asks, “Did you have any subsequent bills” and you are not 100% sure what “subsequent” means, ask. It is better to admit that you do not know the definition of the word than to incorrectly guess its meaning and give an inaccurate answer.
- Pause, then answer. When a question is asked, let the attorney fully complete it. Then pause before you begin your answer. This will give your attorney a chance to object to the question if necessary. If your attorney objects, keep your mouth shut. Do not say anything until your attorney tells you it is OK to speak again. The deposition should not feel like a conversation. Instead, the cadence should be: question, pause, (objection from your attorney if appropriate), your short answer.
- Ask your attorney. If at any time you are confused or need a break or have a question, quietly lean over and speak with your attorney. You have a right to confer with your attorney privately if you need to, so do not hesitate to use this right.
- Answer only the question asked. Only answer the question asked. Do not volunteer additional information. This is not a conversation, but a question and answer session. For example, if the attorney asks you, “What color was the light when the car hit you?” you will answer “red”, “yellow”, “green”, or “I don’t know.” Do not reply, “The light was green, and I remember that because green is my favorite color and the car ran into the back of my car and the light on the other side of the street had a yellow arrow.” A good rule of thumb is that your answer to each question should generally be no more than one sentence long. This concept goes hand in hand with not lying. While you should only answer the question asked, you also should not try to deceive the other side with creative responses. For example, let’s say the attorney asks you, “How much did the shirt cost?” If you have no idea, say, “I don’t know.” If you know the shirt cost $24.99 plus tax, answer, “$24.99 plus tax.” If your recollection is a bit murkier but you can confidently make an educated estimate (for example, you remember that you paid for the shirt with a $50 bill and got change back but do not remember exactly how much you got back), you should answer along the lines of, “I do not remember exactly, but I can make an educated estimate.” If prompted by the attorney to be more specific, you can then explain that you recall paying with a $50 bill and getting change back, so the shirt had to have cost less than $50.
- Do not guess. If you do not know the answer to a question, say so. Answer, “I do not know.” Do not ever guess or speculate. For example, if you are answering the shirt price question, do not say, “I paid with a $50 and got change back, so my guess is the shirt cost about $30.” State the facts, but do not guess.
- Do not explain. This goes hand in hand with answering only the question asked. Do not attempt to explain or justify your answer. Even if you believe the answer you’ve given will hurt your case. Allow your attorney to object or clarify your response, but do not do so yourself. For example, if you did not pay the bill but you have a reason for not paying it, and the attorney asks, “Did you pay the bill?”, just answer, “No.” Either through follow up questions with that attorney or your attorney, or through later testimony and evidence, you will have the chance to explain why the bill was not paid. You will have a very strong urge to explain why you did not pay the bill. You will feel like the attorney is tricking you and that just answering “no” is incomplete and makes you look guilty when you really are not. But, fight the urge. Answer the question asked, without elaboration or explanation.
- Be calm. Do not become agitated, condescending, or rude. Avoid curse words, insults, or angry outbursts. The other attorney may try to get you riled up. Do not fall for that trick. Your attorney will object to any inappropriate behavior by the other attorney or any party in the room.
- Make corrections right away. If at any point during the deposition you realize you have misspoken or given an erroneous answer, correct the mistake right away. You should privately tell your attorney that you believe you have made a mistake, and listen to your attorney’s instructions.
- It is OK not to know all the details. It is OK not to know an answer to a question. Do not feel you need to consult records or other sources during the deposition. If you do not know, say so. If the question is something you should know the answer to but are blanking, be honest: “I don’t remember that information right now.” The attorney will try to jog your memory, perhaps through evidence or documents.
- Do not reveal privileged information. If the other attorney ever asks what you and your attorney have discussed, do not answer. That is privileged information. If such a question is asked, stay silent and allow your attorney to object to the question, or ask your attorney privately whether you should answer.
- Do not joke around. Remember that a transcript is being taken of the proceedings. A transcript cannot record tone of voice, sarcasm, or joking. There is a great scene in the show “The Office” where Michael Scott makes the joke, “that’s what she said.” The attorneys then spend several minutes trying to follow up and ask Michael exactly what was said. Humor does not translate to a transcript. It can make you appear untruthful, disrespectful, or rude.
- Avoid watercooler talk. Do not speak with the other parties or attorneys during breaks or before or after the deposition. You may inadvertently reveal something privileged or strategic that is important to your case.
- Dress like you would for a job interview. If you have piercings or tattoos that can be covered, cover them. Do not wear ripped, revealing, or dirty clothing. Avoid clothing with messages or prominent logos.
- Do not downplay your pain. Humans have a natural tendency to comfort others. If someone asks how you’re doing, the instinctual answer is, “fine” even if you are not fine. This tendency reveals itself often in depositions. Especially if injuries are part of your claim, you want to be truthful about your pain. Do not downplay it. If the attorney asks, “do you still have knee pain” and you do, answer, “yes.”
- Do not feel trapped by “yes or no” questions. You do not have to answer a “yes or no” question with a “yes” or a “no”. Yes and no are very black and white responses. Instead of “yes”, it is often better to say, “I believe so” or “that is my recollection.” Instead of “no”, you can say, “I do not believe so” or “I do not recall that happening.” That way, you are not locked into your answer, and if you remember a fact later you can amend your answer with the recollection. For example, if the attorney asks if you have ever been late making a payment, and you do not think you ever have, answer, “I do not believe so” or “not that I can recall.” That is a safer answer than “no”. If the attorney later drags up a late bill payment you had forgotten about during the deposition, and you answered “no”, you may come across as deceitful.
- You are not bound by documents you did not prepare or sign. The attorney may reference a document or say something from memory like, “So, according to the medical records you saw Dr. Smith on June 4, correct?” If you do not have an independent recollection of seeing Dr. Smith on June 4, do not agree to the question. You did not prepare Dr. Smith’s report. You did not sign off on its accuracy. It is possible that Dr. Smith wrote down the wrong date. Only answer what you remember. You do not have to agree with the written document just because it exists. The attorney can go ask Dr. Smith at a separate time to confirm the date. The exception, of course, is if you prepared the document or signed your name to the document attesting to its accuracy.
If you have any questions about your upcoming deposition, please speak with your attorney.