What is Deposition/Trial Preparation?
A deposition is a legal term for a formal, recorded question-and-answer session between the attorneys of a lawsuit and a witness (the deponent), where the witness’s answers are given under oath, taken down in writing by a court reporter, and used by the attorneys to prepare for trial. A deposition generally serves to find out what the witness knows and preserve the testimony (sworn statement of the witness) for later use, either in motions to be filed with the court, or at trial. A deposition can be taken via Zoom, or taken in a lawyer’s office in the presence of the lawyers for each side, and a court reporter. Although the deposition process can appear informal, it is very important because what you say can be used against you.
What are the Best Practices to be Followed During Deposition?
A deposition is a testimony under oath, which can be used against you by the opposing attorney if you retract or change your statement during a trial. Hence, it is of utmost importance that you observe certain steps prior to testifying. These include:
- Be prepared: You should review the facts of the case so that your memory is refreshed and you can answer accurately.
- Make sure you understand the question: If you do not fully comprehend the question that was asked, do not answer it. Ask for clarification or a rephrasing of the question.
- Think before answering: You should listen to the entire question and think it over before answering.
- You must tell the truth: Usually the damage caused to a client’s case by not being truthful and getting caught is far worse than the damage caused by being truthful about a weakness in the case.
- Do not guess: If you do not know the answer to a question, say so. Never guess in response to a question. It is perfectly okay to say “I do not know” if you truly do not know.
- Do not get upset or rattled: During deposition if you get upset, rattled, or argumentative in response to the attorney’s questions, it may have a negative impact on your credibility.
- Stick to your original answers: Sometimes attorneys use the tactic of asking the same question in different ways, or repeatedly, in an attempt to get a different answer. Stick to your original answer and do not let the attorney influence your testimony or put words in your mouth with this strategy.
- Silence and breaks: Occasionally, lawyers will purposefully use silence and breaks after you have answered a question to prompt you to keep talking or give another answer. You should disregard the silence and breaks, and merely wait for the next question.
- Review the information: Many times, photographs or documents will be used as evidence in a personal injury lawsuit and will be exhibited in your deposition. It is crucial that you do not testify about the contents of a photograph or document you are not familiar with. You must seek out the documents/photographs beforehand, and completely review them before answering any questions.
- Do not bring documents to the deposition: Do not bring a diary, notes, or other documents to your deposition unless you are willing to produce them to the deposing attorney. Your expert file is due at least three days prior to your deposition and any notes that you generated need to be produced as part of your expert file.
- Objections: The lawyer may object to certain questions asked by the other lawyer. If this happens, wait until the question is asked and the objection stated then answer the question. A judge will rule later on if the objection is sustained or overruled. But you still need to answer the question.
- Deposition questions can cover topics you find irrelevant: The subject matter of deposition questions can be very broad and seemingly unrelated to the case at hand. These questions can also be very personal and get into private and sensitive matters. The attorney taking your deposition may be trying to determine how you will present yourself in court when they fire a sensitive question at you in front of a jury. Alternatively, they may be asking you things hoping that your answers diminish your credibility or get you to contradict yourself or change an answer.
- Stay calm and relaxed: It is important for you to stay calm and relaxed while answering questions, as being tense and confused can lead to a bad deposition. After every question, pause for 1-2 seconds or take a sip of water.
- If a question is complex and cannot be accurately answered with a simple “yes” or “no,” avoid giving a yes or no response first and then trying to explain. You may be cut off after answering, leaving your response incomplete. Instead, start with your explanation or clarification, then conclude with “yes” or “no” if necessary. Your goal is to ensure the judge and jury fully understand your opinion. If you respond with a simple “yes” to a carefully structured question that does not fully reflect your view, you risk misrepresenting your position.