What is a Deposition?
A deposition is a discovery tool that attorneys use to obtain the sworn testimony of parties and witnesses prior to the trial of a civil case. Depositions are an excellent time for lawyers to inquire about facts that may be relevant to the lawsuit. Lawyers also use depositions to evaluate how a party or witness will appear before a jury so they can better estimate the settlement value of a case. There is no judge or jury present during a deposition, only the lawyers and a court reporter and/or videographer. If a case goes to trial, depositions can be used in cross-examination of a witness if the trial testimony differs from the testimony given at the time of the deposition. Without question, depositions are the most important event that occurs during a civil lawsuit except the trial.
How Do I Prepare For My Deposition?
You have been summoned for a deposition. What now? If you are a party to the case, your deposition can go a long way in assisting your lawyer in handling the case either by way of settlement or trial. What you do at the deposition can help or hurt you, depending on your attitude, truthfulness, and appearance. Therefore, it is critical to prepare for your deposition. Here are a few recommendations that may help you be an effective witness:
1. Physical Appearance For A Deposition:
It is important that you make a good impression upon opposing counsel. You should appear at the deposition dressed as you would expect to dress if you were going to Court to appear before the judge and jury. After all, this is the first opportunity opposing counsel has to see you. Wear neat and clean clothing and be prepared to show any and all injuries which you suffered. If this presents a potentially embarrassing situation, tell your lawyer in advance and he can take care of it.
2. How To Conduct Yourself At A Deposition:
• Treat all persons in the deposition with respect and courtesy even if they do not return the favor. A famous trial lawyer once said, “Anger is the blood of the battle in Court.” Although you may feel anger, you must control it and never lash out at opposing counsel.
• You must always tell the truth no matter the costs but it is important that you do not get trapped into saying something that is not true. Always listen to each question carefully and be sure you understand the question before you answer. If you do not understand a question, ask the opposing lawyer to repeat it or rephrase it so you do understand. When you do understand a question, answer it honestly and in a straightforward manner. If you don’t know the answer, say you don’t know. Never guess at an answer and remember honestly is always the best policy. If you tell the truth and don’t guess, you will be fine.
• Give audible answers. The court reporter will take down all of the questions asked during a deposition as well as your answers and you must speak clearly to make sure the court reporter gets everything correct.
• Avoid joking or wisecracks. Lawsuits are serious matters and jokes have no place is a deposition.
• Never volunteer information. Sometimes when witnesses get nervous they get “diarrhea of the mouth.” They just start talking and inevitably say something they don’t really mean that can be taken out of context and used against them later in the lawsuit. The lawyer taking the deposition has the responsibility to ask proper questions to obtain the information he or she seeks. Let them do their job and only answer the question they ask.
• Listen to your lawyer. Sometimes your lawyer may object to a question. If your lawyer objects, stop speaking immediately, listen to his objection, and follow his instructions.
• Wait until the opposing lawyer finishes his or her question before you answer. Do not anticipate what the question is before the lawyer has finished asking the question. Do not start nodding your head or answering until the question is complete. This is a common mistake in depositions because it happens every day in normal conversation. A deposition is not a normal conversation and you should not treat it as such.
• Be careful of questions in which the attorney puts words in your mouth. Attorneys often ask leading questions so they can phrase the answer. For example, “You had pain in your neck prior to this wreck, isn’t that right?” This is a leading question that calls for a “yes” or “no” answer. Leading questions are much different than a question that simply asks “Tell me about any pain you experience in the year prior to the wreck.” The difference is that the attorney is suggesting the answer in the leading question and asking you to agree with it. Never agree to a leading question unless you fully agree with what the attorney says.
• Beware of questions involving distances and time. If you are making an estimate, be sure that everyone understands you are making an estimate. People are notoriously bad at giving distances and times. If you do not know a time or distance, say so. Never guess.
3. Your Deposition Is All About You:
The most important aspect of your deposition is you. If you are fair, honest, and professional in giving your deposition testimony, you will be taking a tremendous stride towards a satisfactory completion of your case.
Premises lawyer Joel Williams hopes this information will be helpful to you if you are ever required to give a deposition. Remember, a deposition is serious matter and you should always meet with your lawyer to prepare for your deposition. Review any documents related to your case and discuss what questions may be asked with your lawyer. Your lawyer should not tell you what to say but he or she may be able to help you phrase answers to anticipated questions so your answers will be more effective and accurate. If your lawyer encourages you to tell anything but the truth, fire him immediately and hire someone who has the proper ethical compass required of legal professionals.