Deposition Prep

What Is A Deposition? Why are they Taken?

A deposition is part of the discovery process in a lawsuit. It is the examination of a witness under oath, outside the courtroom, with the witness’s testimony being recorded by a certified court reporter. The purpose of the deposition is to allow the lawyers for the parties in a lawsuit an opportunity to learn what a witness knows about the facts and issues pertinent to the lawsuit. With certain exceptions, lawyers may take the deposition of any person whom they believe has knowledge pertinent to the issues in the lawsuit. Depositions are sometimes taken to simply learn what a witness knows. They may also be taken to preserve testimony if there is some reason to believe a witness may not be available when the case goes to trial. In such cases, the recorded testimony, or transcript, may be used at trial as if the witness is testifying in person. Lawyers at trial may also use the deposition transcript to show inconsistencies in a witness’s testimony.

Should I Prepare For My Deposition?

A deposition requires intense concentration and can be extremely tiring for witnesses, so you should avoid the use of alcohol and drugs and be sure to get a good night’s sleep before your deposition. Otherwise, you should not do anything to prepare for your deposition unless your lawyer asks you to. In particular, do not take it upon yourself to do research or review documents in preparation for your deposition without first discussing it with your lawyer. You should come to the deposition dressed as you would if you were testifying in court. If you are a professional you should wear business attire. If you don’t normally wear a suit and tie you should dress in nice casual clothing. Remember the opposing counsel is attempting to “size you up” as a witness, and you should try to give the best impression possible. If you have any questions about how to dress for your deposition ask your lawyer.

Never Guess In Response To A Question!

Only testify from your own knowledge. You know information if you have received it through one of your five senses. If you are asked a question that requires you to guess or make assumptions, your answer should be “I don’t know.” Speculation is another form of guessing, and it is strictly prohibited. Your lawyer will not allow you to answer questions that require you to speculate. The lawyer taking your deposition is entitled to an estimate in response to his questions, if you are able to give one. Generally estimates can be given when referring to dates, times, distances, quantities, and the like. An estimate differs from a guess in that you have some basis for giving the estimate. If you are estimating in response to a question, you should state that, and be sure that your estimate is not simply a “guess.”

Only Answer Questions That Are Asked.

Never offer information during your deposition that is not in direct response to a question. Do NOT attempt to educate the opposing lawyer, or “tell your story,” because you don’t think you are being asked the right questions. If the opposing lawyer does not ask the right questions he is not entitled to the information. It is in your best interest if there are gaps in the story, because the opposing lawyer will be hindered in her trial preparation. Limit your answers to the specific question asked. Be as concise as possible when answering questions. If the question can be answered with a “yes” or “no,” do so. Do not anticipate the next question and provide an answer to it; you might not be asked that question. For example, the question, “Do you know what time you arrived here this morning?” should elicit the response: “yes”. Do not respond to that question by providing the time you arrived; you would only give that response if the question was, “what time did you arrive?”

Always Follow Your Lawyer’s Instructions During A Deposition.

Do not attempt to do your lawyer’s job. Your lawyer knows the legal and evidentiary implications of your testimony, and may make decisions during the deposition that will require giving you instructions on the record. As stated above, your lawyer may instruct you not to answer a question. Always follow your lawyer’s advice and do not answer the question. The opposing lawyer may attempt to intimidate you by telling you a judge could find you in contempt of court if you don’t answer the question. Don’t pay attention to such comments; you cannot get into trouble by following your lawyer’s instructions. Always follow your lawyer’s instructions at a deposition.


Sources: AVVO