A Deposition is one of the most useful tools employed during the litigation of a case to gather information. It is the oral testimony of a witness, usually the opposing party, which is reduced to writing for later use in court or for discovery purposes. Depositions are a vital part of the discovery process in which litigants gather information in preparation for trial.
Most commonly, depositions do not directly involve the court. The process is initiated and supervised by the parties. Almost always, the request for a deposition comes from the opposing side. The sole purpose of a deposition is to gather facts to aid a party’s position or unravel its case. Generally, the only persons present at a deposition are the witness, attorneys for all interested parties, and a person qualified to administer oaths. Most depositions are recorded by a stenographer, although alternative means such as electronic and video recording are increasingly being used. The deposition usually takes place at an attorney’s office; however, if the attorneys are unable to agree on the location of the deposition it may take place at the courthouse.
At the deposition, all interested parties may question the witness. They may do so through their attorney or, if pro se, may ask questions themselves. The attorney will ask the witness, or deponent, a series of questions about facts related to the lawsuit. The rules allow some latitude in the areas that can be inquired into. Areas of inquiry include background information such as education, family and employment. The deponent does not ask any questions. He or she only answers questions. The purpose is to allow for the unfettered access to information which the witness may possess in relation to the case. As a result, lawyers are not permitted to coach their clients’ testimony, and their ability to object to deposition questions is usually limited. Most objections to questions or substantive testimony will come at trial or in the form of a written motion to the Court prior to trial. Otherwise, if there is an imminent need for a ruling on a particular matter during the deposition then a conference call with the court may be available.
The deposition is also used by attorneys to evaluate how a witness would behave at trial: Whether they are credible, if they appear sympathetic, and whether they are able to articulate informed answers. How you approach a deposition, dress for a deposition and your composure under the pressure of questioning all play parts in potential settlement and evaluation by the deposing lawyer.
Here are examples of some simple rules that make depositions for a witness/party more bearable and potentially less damaging.
I do not know is a perfectly acceptable answer in a deposition. In fact, it should be the most used phrase by the witness. While most people believe they have perfect recollection of events, it is seldom the case. If the answer to a particular question does not immediately come to your mind, as though it is as familiar as your own name, “I do not know” is acceptable. Remember, there is a stenographer taking down every word that will be memorialized for future use. Be accurate. Depositions are intended to gather facts which will be used to support a position at trial. It can also be used to discredit a witness if their recollection at trial is different than at the deposition. Do not guess or speculate on facts. If a document is utilized to refresh your recollection and it does, then answer as best you are able.
Listen to what is being asked of you and only answer within the confines of the question. If someone were to ask your name you would not also offer up you address, place of birth, social security number and bank information. The same is true in a deposition. Do not feel compelled to provide more of an answer then the question calls for. If the question calls for a, “yes” or “no” response, then answer with a “yes” or “no.” People who appear at a deposition feel compelled to provide as much information as possible, relevant or not, topical or not and whether or not appropriate. A deposition is a two-way street you must listen to the question and answer what is being asked. A good technique to help is taking a mandatory pause between questions an answer. This pause will allow you to digest what is being asked and provide a brief period for your attorney to voice any objections.
The Opposition is attempting to solicit helpful information for its case. The attorney will be friendly, courteous, and may even be likeable. However, do not lose sight of the fact that he/she is/are not at the deposition to help you. The deposition is not the place to air your grievances or attempt to convince the opposition that you are correct. This will only provide more ammunition for the opposing lawyer to generate questions. Attorneys generally have an outline of topics they would like to discuss, but the majority of questions come directly from the answers provided by the witness during the deposition. The more expansive the answers the more in depth the questions will be. Finally, you must always be aware that the stenographer is taking down everything that is said between the lawyer and witness. These statements will come back to haunt you at trial, no matter how trivial or innocent they seem at the time; lawyers are known for twisting and manipulating words and phrases to suit their theories. If you keep your answer brief, one word or one sentence, you will reduce the possibility that your intent could be misrepresented later.
Control the Pace of the deposition. Be relaxed, be comfortable and plan to be in the deposition for the entire day. Answer questions at a pace which is comfortable to you. Take a pause between question and answer. Take frequent breaks to use the bathroom and make sure if the deposition is lengthy to take adequate breaks for food. The deposing attorney will have a cadence in his or her questioning. This does not mean you have to answer questions at the same rate that they are asked. You control your answers and the time it takes to develop them.
The deposition is one of the most powerful litigation tools in the attorney’s arsenal. With the proper preparation and state of mind the witness can survive a deposition with little or no unintended damage. While this is not an exclusive list of measures to prepare for a deposition it does highlight the need for reputable representation in preparation should the situation arise. If you would like to discuss this article in greater detail, feel free to call one of our attorneys at 303.432.999.