What is a deposition?
In its simplest form, a discovery deposition is the oral testimony of a witness taken under oath before trial at which time most of the objections available at trial do not apply; the basic rule being that the questions asked need only address themselves to information that is relevant to the case or to discovering relevant facts. Anything said at the deposition can be used as evidence at trial.
A deposition is a question-and-answer session. Attorneys for the other side will ask you questions, and you will answer the questions. When you answer, you will be testifying under oath, just as if you were testifying in court. A court reporter will make a record of what is being said, which will later be transcribed into booklet format. When you are answering questions, you should relax and speak openly and frankly. You have nothing to be afraid of. The following pointers may be of some help:
The opposing party has a right to find out what information you have about the dispute so they can be prepared for trial, if the case does not settle.
What Happens at a Deposition?
The first thing that happens is the court reporter will ask you to swear or affirm to tell the truth. Then the other attorney will usually ask you to follow his or her rules. Ninety percent of the time, these rules are a) don’t talk over his questions because the court reporter can’t get down two people talking at once, b) if you don’t understand the question please ask for clarification, and c) if you need a break ask for one. Then the questions and answers begin. Once the deposition starts, you cannot talk to your attorney about your testimony. Your attorney is only there to protect you from improper questions. If your attorney objects, stop talking. Let the attorney get the objection out and then he will tell you whether to answer or not. Most of the time, objections are “for the record” only, because there is no judge present. So, a lot of times, attorneys object to questions and then tell their clients to go ahead and answer. Do not be surprised if that happens.
A deposition is a question-and-answer session. It is not a conversation. The pattern of the deposition should be:
If the deposition starts feeling like a comfortable conversation with an old friend, you’re doing something wrong. It should not roll along effortlessly like a conversation. You need to make sure that after you hear the question, you pause and think your answer through. After you are sure that the answer in your head is the best, most accurate answer, then you say it. Taking a pause and thinking through what you are going to say has two benefits:
Second, it lets you take control of the deposition.. But you still maintain 49% control over the way the deposition goes by controlling the pace.
TIPS FOR ANSWERING THE QUESTIONS
1. Tell the Truth– It is your sworn duty. At your deposition, as in all other matters, honesty is the best policy. You must testify accurately about what you know.
2. Understand the Question– You cannot possibly give an accurate answer unless you understand the question. If you do not understand the question, say so. The lawyer will either repeat the question or rephrase it. Listen carefully to make sure that you understand. Some questions may have more than one meaning or may assume that you have testified to a fact when you have not done so. Listen to the entire question before answering.
Do not be afraid to say, “I don’t understand” or “I’m not 100% sure what you’re asking”. People do not like to admit they do not understand the question. If you are not 100% sure what something means, ask.
QUESTION . . . PAUSE . . . ANSWER . . .
QUESTION . . . PAUSE . . . ANSWER . . .
3. Answer the Question that is Being Asked– If the question can be answered with a “yes” or “no”, do so and then stop. By attempting to go beyond the pale of the questions, it may well appear that you are attempting to persuade the questioner rather than answer the question. Leave the persuasion to your lawyer.
Your answer should be a sentence long. It should not be a paragraph, a chapter or a book. If your answer is longer than a sentence, you are giving too much information.
You may feel that your answer is incomplete, and you will want to further explain so that the lawyer gets what you are saying. Fight the urge. You never want to volunteer something that was not asked for in a deposition. If you get the feeling that you should give more information to fully explain something, just remember that we can talk about it after the deposition is done and write a letter to the other attorney if we really have further explaining to do.
4. “I Don’t Remember”– Do not be afraid to say, “I don’t remember”. If you do not remember something, just say so. Do not guess! If you don’t know, say you don’t know. Your testimony should consist of your personal observations and knowledge, not your guesses. If you do remember an event but do not remember all the details with absolute certainty, you should qualify your answer by saying, “To the best of my memory” or in some other way.
5. ‘Yes” or “No” Questions– Just the attorney asks you a “Yes” or “No” question does not mean that you have to give a “Yes” or “No” answer. One of the reasons for taking your deposition is to lock you into an answer. Instead of saying “Yes”, try saying “As far as I can recall”. Instead of “No”, you could say “I don’t recall that happening”. That way, you are not really locked into that answer. If you remember the information later, you can change your answer to make it true.
6. Breaks– A deposition is taxing. On top of the anxiety that everyone naturally has, you are going to basically ask your brain to run a mini marathon. Therefore, the night before the deposition, have a decent dinner then get a good night’s sleep. During the deposition, do not be afraid to take ten-minute breaks. I advise taking a break every hour.
WHAT KIND OF QUESTIONS WILL BE ASKED?
The attorney will usually ask general questions.
- General background information such as name, address, date of birth, who is in your family, education, work history, etc.
- How you met particular people.
- Did you say certain thing?
- Did you send a particular email?
- Do you recognize this email?