Learn more about the purpose and procedure for depositions and how to prepare for a deposition in a civil case.
1. THE PURPOSE OF A DEPOSITION: The purpose of a deposition is to gather facts and evidence for a case. A lawyer will ask you questions under oath concerning what you may know about the case. The lawyer may also ask you to review and identify certain documents, and may ask you questions concerning those documents. It is important to keep in mind that even though the deposition is not the trial, the testimony that is given at the deposition has the same weight as trial testimony.
2. FAILURE TO APPEAR OR ARRIVING LATE: If you should fail to appear for the deposition or if you arrive so late that the parties have already left, you may be sanctioned by the Court. Bear in mind that a lawyer that has scheduled a deposition only has to wait fifteen minutes before he may adjourn the deposition because you failed to appear. The Court may compel your appearance at a future deposition and may order that you pay the costs of the Court Reporter as well as attorney’s fees. As such, the failure to appear or to appear late could be very costly for you. Should you again fail to appear for a deposition after the Court has ordered you to do so, the Court may issue a Writ of Bodily Attachment or a Writ of Arrest to have you arrested and held in jail until you can explain why you did not appear for the deposition.
3. WHO WILL BE PRESENT AT THE DEPOSITION: The people present at the deposition will typically include the parties to the case, that is the Plaintiff and Defendant; the attorneys representing the parties of the case; a Court Reporter who will be typing the questions and answers to the deposition; and yourself.
4. HOW THE DEPOSITION WILL BE CONDUCTED: The first thing that will happen at your deposition is that the Court Reporter will swear you in, that is, have you affirm that the answers you will provide will be true and correct. Thereafter, the lawyer that scheduled the deposition will typically provide you with the ground rules for the deposition. Usually, this means the lawyer will advise you that you are under oath, that all answers are to be truthful, and that you must provide verbal answers to all questions as the Court Reporter can not record the nodding or shaking of your head to a question.
From that point forward, the lawyer taking the deposition will ask you a series of questions. After every question, you are to provide a verbal response that should attempt to answer the question. Another lawyer present at the deposition may verbally object to the question prior to you providing an answer. Objections generally do not occur often but may arise from time to time. For the most part, there are only two instances in which an objection can be made to a question at a deposition. First, the question seeks to obtain information that is protected by a legal privilege (e.g. attorney-client communications) or secondly, the form of the question is either unclear, improper, or is harassing.
As the deposition proceeds, the lawyer taking the deposition may ask you to identify certain documents and ask you questions concerning those documents. The deposition continues until the lawyer has finished his or her line of questions. You are allowed to take a recess if you need to visit the bathroom or if you need a break. Lunch and smoking breaks may be requested, as they are needed. Depositions are taken during normal business hours until concluded. If the deposition cannot be concluded by the end of the day, normally 5:00 p.m., you may need to appear again at a later date to complete the deposition. Once the lawyer taking the deposition has completed his or her questions, other lawyers present may seek to ask you additional questions. These additional questions, known as the cross-examination are limited to those issues and questions that you previously answered. Generally speaking, there are not a lot of cross-examination questions.
Upon completion of all questions, you will be given the option to either “read or waive” your deposition transcript. What this means is that you may first read the deposition transcript to ensure that the Court Report accurately recorded your answers before the transcript becomes final. If you should waive this right, the transcript becomes final without you reviewing. As a general rule, you should always elect to read your transcript and never waive that right.
5. THE ROLE OF YOUR LAWYER AT THE DEPOSITION: The role of your lawyer at the deposition is to ensure that the lawyer taking the deposition does not ask you improper questions or engages in conduct that may harass, belittle, or badger you. That being said, your lawyer will not be answering the questions for you or testifying on your behalf. As such, your lawyer is not an active participant in your deposition but is more of a guardian to protect you in the event that the process becomes abusive. From time to time, your lawyer may raise an objection to a question. In the event that your lawyer voices an objection, you should refrain from providing an answer to the question until your lawyer advises you what to do.
6. HOW THE DEPOSITION WILL BE USED IN YOUR CASE: The deposition transcript may be read and reviewed by the Judge or Jury in the case. The reason the Judge or Jury may read the deposition is to decide important factual or legal issues in the case. Additionally, the deposition transcript may be important in evaluating your credibility as a witness and whether you are to be believed by the Judge or Jury. In reading the deposition transcript, the entire transcript need not be read; rather individual sentences can be read even if they are out of context. As such, it is important that every answer you provide during your deposition be thoughtful and truthful.
7. HOW TO PREPARE FOR THE DEPOSITION: Preparation for your deposition should not be done the same day that your deposition is to be taken. In other words, set some time aside several days in advance of the deposition so you can properly prepare for the deposition. The more prepared you are, the faster the deposition should be. The first step in preparing for the deposition should be to review the complaint and all of the facts of the case. If it will assist you in remembering the facts, prepare a short timeline of the events as they occurred in the case. Next, you should review all exhibits to the complaint and all written documentation for the case. Additionally, if you provided answers to interrogatories or admission requests in the case, you must review your previous answers so that they are not contradicted by your deposition testimony. Finally, meet with your lawyer in advance of the deposition to go over any questions you may have or to prepare a strategy on how to answer particular questions. Any advance preparation or coaching you receive from your lawyer is not illegal, improper or cheating. Similar to sports, advance preparation is in fact required and necessary if you want to be successful.
8. HOW TO CONDUCT YOURSELF AT THE DEPOSITION: The following points are intended as general tips that will make your deposition experience easier and more successful. The tips listed below are not listed in order of importance. All the following tips are equally important and relevant.
A. Prior to the deposition and until the deposition is completed, do not speak to anyone at the deposition except your own lawyer. This rule includes the Court Reporter, secretaries, receptionists, and other witnesses or lawyers.
B. Depositions are formal affairs. Dress properly, act respectfully and be polite. Avoid slang and use grammatically correct English (e.g. “yes”, “no”, “Mr.”, “Mrs.”, “sir”, “miss”).
C. Never use racial terms or foul and derogatory language. The use of this type of language will have a severe impact upon your character and credibility.
D. Always tell the truth. Any lie, no matter how small or irrelevant can be extremely damaging and cast doubt upon your entire testimony.
E. Your objective should be to keep your answers short and to the point so you can end the deposition as soon as possible.
F. Listen to the entire question before you provide an answer. Never assume what a question will be until the question is completed.
G. Pause and consider the question before answering.
H. Remember that the deposition is not an intelligence test. It is perfectly acceptable if you do not know an answer to a question or if you simply do not remember. Do not guess, no one is keeping score.
I. If you do not understand a question or if you are confused by a question, ask that the question be restated or rephrased.
J. If you feel that a question is ambiguous and can be answered in different ways, do not suggest the different manners in which the question can be answered. Merely state that you do not understand the question and that you need the lawyer to rephrase the question.
K. When answering a question, only state facts in which you personally know. That is, what you personally saw, heard, did, or felt.
L. Provide a short and simple answer to only the question that is asked. Long-winded answers only provide the lawyer taking the deposition with additional ammunition to ask you another question.
M. In responding to a question, do not address any conversations you have had with your lawyer or the topics of those conversations. Conversations with your lawyer are confidential and privileged.
N. Do not engage in a conversation with the lawyer taking your deposition. Going into conversational mode with the opposing lawyer will get you in trouble. Remember, the lawyer taking your deposition is not your friend; he has been hired by the other side to win the case. Therefore, consider each question thoughtfully and only provide a short simple answer.
O. Do not try to win your case or convince the other side that they are wrong with your testimony at the deposition. This type of testimony detracts from your case and can only hurt you in the end.
P. Request a break if you need to use the bathroom, require a smoke break, water, food or a snack.
