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How to prepare for a deposition *

A deposition is sworn testimony taken before trial.

  • A party may use this testimony at trial to contradict a witness’s live testimony, which is called impeachment, or possibly instead of live testimony if the witness isn’t available at trial.

 

Lawyers take them for more than one purpose.

  • They want to discover what you know.

  • They want to learn what they don’t already know or confirm what they think they know.

  • They want to lock in your testimony for trial, because they can use it to contradict live testimony or refresh your recollection.

  • They want to use your testimony as evidence in pretrial proceedings such as motions for summary judgment that could dispose of claims or the case.

 

The setup.

A deposition is less formal than testifying at trial.

  • But deposition testimony is still sworn testimony subject to perjury just like in a trial.

  • It usually takes place in a conference room with the lawyers in the case and a court reporter transcribing every word.

  • Sometimes, a party will have a videographer there to record the deposition.

  • Parties to the action may attend.

  • A corporate party may designate an officer to attend as a representative.

 

Your own lawyer may not say very much.

  • The Rules of Civil Procedure, which govern this process, only allow an attorney to object to deposition questions for very limited reasons.

  • A lawyer may object if the question is ambiguous, compound, or otherwise may be confusing.

  • Objections for evidentiary reasons, like hearsay (testimony about what someone else said in the past) or relevance, are generally not allowed because those objections may be raised at trial if an attorney attempts to use the deposition testimony.

  • If you’re a party to the lawsuit, your lawyer will have a chance to ask questions but for strategic reasons may choose not to do so.

 

Be prepared to be prepared.

  • First, listen to your attorney about how he or she wants you to prepare for a deposition.  This may vary depending on your role in the case.

    • You may be asked to review certain documents in the case.

    • You may be asked to avoid reviewing any documents.

  • Be prepared to sit for long stretches and bring a snack. 

    • Whether the lawyers take a lunch break during an extended deposition is not a guarantee, and many witnesses prefer to push through the ordeal to get it over with.

    • But be sure you’ll be comfortable and able to think clearly however long the questioning takes, and insist on a lunch break if that’s necessary for you to keep your attention on the questions and answers.

    • You may ask to take brief breaks and, in consultation with your attorney beforehand, may want to do so every hour or so.

  • If you take medication or have a medical condition that might affect your ability to testify at length or which might affect your comprehension of the questions being asked, discuss that with your attorney beforehand.

  • If you plan to take anything into the deposition with you, such as notes or timelines, discuss them with your attorney beforehand because you may be asked to provide them to the lawyers in the room.

  • Unless you’re an expert witness, you won’t be paid for your time.

    • But attorneys are expected to take steps to ease the burden of depositions and other discovery measures involving non-parties to a lawsuit.  That may include scheduling to reduce the impact on a witness’s work schedule, for example.

    • Ultimately, a non-party witness is likely to be required to comply with a subpoena unless a judge intervenes.

    • A party is very unlikely to avoid having a deposition taken for any reason short of a health concern about the proceeding itself.

  • Ask your attorney about the lawyer taking your deposition; your lawyer may know that person’s style of taking depositions (aggressive or accommodating, impatient or methodically determined) and have other insights.

 

Keep cool in the hot seat.

Rule Number 1: tell the truth.

Next, keep your wits about you.

  • If your memory about a subject isn’t particularly clear, beware of filling in gaps to provide an answer.

    • It’s fine to answer that you don’t recall or to ask to see a document that you’ve been asked to testify about.

    • If you’re asked about a document that isn’t in front of you, make sure your memory is clear enough about the document to answer the question.

    • The same goes for events; guessing about details based on hazy half-memories is often not a preferred option.

    • If the attorney insists that you speculate, you can make clear that your answer is just speculation.

  • If you answer a question, you are assumed to have understood it.

    • You may ask the attorney to rephrase a question that you don’t understand.

    • If your attorney objects “to the form of the question,” you should make doubly sure the question is clear to you before answering.

 

Answer the question you’re asked, period.

  • Elaborating on answers that could be short and sweet may lead to mistakes and even more questions and a longer deposition.

  • Your attorney may give you rules to follow when answering, such as if you have to breath more than twice during your answer, consider whether you’ve answered enough.

  • If you are asked a yes or no question, answer yes or no and, if necessary to ensure the response is accurate or in proper context, give a succinct explanation (“yes, but…”).

 

Frustration, anger, and repetition lead to haste.

  • If you feel stressed or beginning to lose your cool, ask to take a break.

  • If you’re asked a series of yes or no questions, be careful not to be lulled into a rhythm providing the same answer without fully thinking through each question.

  • Give each question its own space and thought, even if you know the answer right off the bat.

 

Relax as much as you can, listen to your attorney, and tell the truth.

* This FAQ does not create an attorney-client relationship and should not be a substitute for consulting an attorney about your case.  This FAQ is intended to provide general information about the practice of law in response to generalized questions.  If you have a specific concern that requires detailed information about your situation, you may need to consult an attorney directly.

© 2020 by Reiss & Nutt PLLC.

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