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Getting ready for your deposition is an important step in the litigation process. What you say and how you handle yourself can significantly impact your case during discovery and trial. Unlike courtrooms, depositions usually take place in an attorney's office. Both sides’ attorneys are present, along with a court reporter who records everything said.
The main goal of a deposition is to gather information under oath that can be used later in the trial. The opposing attorney will ask questions to gather facts and understand your perspective. The answers you give in a deposition will be recorded and could be used in court, so your responses must be honest.
The following 15 tips to help you prepare for your deposition offer general advice and should not replace specific guidance from your attorney. Always discuss any uncertainties or concerns with your legal counsel to ensure you are fully prepared for your deposition.
What is a Deposition?
A deposition is part of the discovery phase of a lawsuit, occurring before a trial. Attorneys from both sides can request depositions as part of trial preparation and further evaluate a case's strength. Depositions and interrogatories (written questions answered under oath) are common methods to uncover information.
In a deposition, the witness, known as the deponent, is sworn to tell the truth by a neutral court reporter before any questions are asked. Attorneys for both sides attend, and the attorney representing the other side will ask questions while the court reporter transcribes everything. Portions of this transcript may be used in the trial.
The attorney for the opposition aims to get your testimony on record. Be aware that everything you say can be used against you, and the opposing attorney's goal is to get you to say something that may weaken your case. The deposition is not for your benefit; it benefits the other side. Resist the urge to tell your story, justify your actions, or vindicate yourself.
Depositions are informal proceedings without a judge present. They typically last two to six hours, sometimes less. Attorneys have the right to ask a broad range of questions, even on topics that may seem irrelevant. You must answer all questions unless your attorney instructs you otherwise. Remember, no matter how polite the opposing attorney may seem, their role is to help their client by weakening your case.
Some attorneys may be aggressive or relentless in their questioning. Your only ally in the deposition is your attorney. Your lawyer will not ask you questions during the deposition. They are there to protect you from improper questioning. This is not the place to tell your story; it is only to provide facts as you know them. If your attorney begins to speak, stop talking. If the attorneys enter into discussions, remain silent and listen carefully. If your attorney objects to a question, stay quiet until they tell you to answer. If instructed not to answer, do not respond, regardless of how harmless the question may seem.
How Important Are Depositions?
Both sides use depositions in a lawsuit to gather facts to build their cases before trial. The following are some reasons why depositions are so important:
Fact-Finding. Depositions allow attorneys to gather detailed information from witnesses. By asking questions and getting responses under oath, attorneys can uncover facts that might not be available through documents alone.
Testimony Preservation. Depositions help preserve a witness's testimony. Since people’s memories can fade or change over time, having a written record ensures that the testimony remains consistent.
Strategy Development. Attorneys use depositions to assess the strengths and weaknesses of their case and the opposing side's case. They can identify critical issues, prepare for future court proceedings, and develop strategies based on the information obtained.
Impeachment Tool. If a witness’s testimony at trial differs from what they said in their deposition, attorneys can use the deposition to challenge the witness’s credibility. This can be a powerful tool in undermining the other side’s case.
Settlement Facilitation. Sometimes, the information gathered during depositions can lead to settlement discussions. When both sides clearly understand the facts, they may be more willing to reach an agreement without going to trial.
Understanding Witness Credibility. Depositions allow attorneys to evaluate how witnesses present themselves, respond to questions, and overall demeanor. This helps in preparing for how the witness might perform during the trial.
The opposing attorney aims to get answers to questions that make their client look more favorable. They may ask a broad range of questions, some of which might seem irrelevant. Unless your attorney instructs you otherwise, you must answer all questions truthfully and concisely.
How to Prepare for Your Deposition
You may wonder how you will survive your deposition. If anything is unclear, ask your attorney or their staff for clarification. Asking for clarification will help you the most while preparing for your deposition. Review any interrogatories you have answered, as the opposing attorney will likely use them during your deposition. Read the pleadings and motions filed in your case and discuss any questions with your attorney.
The other side may ask you to bring documents to your deposition. Do not bring anything unless instructed to do so. If asked to bring documents, gather them, even if it means retrieving them from a lockbox or storeroom. Review all documents with your attorney before the deposition. If you have not been asked to bring documents but think some may be relevant, discuss them with your attorney before bringing them to your deposition.
Important: Letters between you and your attorney and any documents prepared concerning the lawsuit are privileged and confidential. Do not produce these documents. If you disclose even one, you may lose the privilege for all of them. Inform your attorney immediately if the other side requests privileged documents.
Your attorney or a law firm member will meet with you before the deposition to further prepare you. Do not hide anything from your attorney. Be completely truthful with your attorney and their team. You will not be fully protected if there are things the other side knows that your attorney does not. Be candid in all respects, and know that everything you say to your attorney or their legal team is privileged and confidential.
15 Tips to Help You Prepare for Your Deposition
1. Dress Neatly
Wear comfortable business attire that is not flashy, offbeat, dirty, or sloppy. Your appearance can affect how attorneys evaluate you as a witness. If a videographer records your deposition, the video may be shown in court. Making a good first impression is important.
2. Always Be Polite
Your conduct and demeanor can be more important than your answers. Stay calm and courteous, even if you are nervous. Address attorneys as “Mr.” or “Ms.” and speak confidently and clearly.
3. Be Truthful in Your Testimony
Provide requested documents and answer questions truthfully. Lying could lead to criminal prosecution for perjury and damage your credibility and case. Always answer truthfully.
4. Be Concise
Answer each question truthfully but briefly. Before answering, look at the attorney, listen carefully, pause for two or three seconds, and then give a concise answer. For most questions, “Y” “N” or “I don’t know” is sufficient. Avoid giving long-winded answers.
5. You May Consult with Your Attorney
If you have questions or concerns about your potential answer, ask the opposing attorney, “May I consult with my attorney?” Consultations should be minimal. Your attorney can help clarify questions but cannot tell you how to answer.
6. Answer Only from Your Personal Knowledge
Avoid guessing or speculating. If you do not know or remember something, say so. Do not let the opposing attorney pressure you to make statements outside your knowledge.
7. Testify in Your Own Words
Do not let opposing counsel put words in your mouth. Stick to your version of the facts as you know them. If an attorney attempts to summarize your testimony inaccurately, disagree. State that you disagree if their summary is not exactly accurate.
8. Do Not Be Intimidated
The opposing attorney may try to intimidate you with insinuations or raised voices. Stay calm, look them in the eyes, and reaffirm your testimony. Your attorney will not let you be badgered.
9. Be Careful of Questions Dependent on Your Memory
If asked about something that happened long ago and you do not remember the details, say so. Do not guess. If pressed for dates, say, “To the best of my knowledge, it was around that time.”
10. If You Don’t Know, Say So
Do not speculate or guess. If you do not know the answer to a question, say, “I do not know.” Do not admit to something you are not sure about.
11. Don’t Give an Opinion Unless Asked
Stick to factual answers and avoid giving your opinion unless specifically asked. Volunteering opinions can only hurt your case.
12. Finish Your Answers
If interrupted while giving a long answer, politely insist on finishing your response. Make sure your answers are complete.
13. Use Care with Documents
If asked about a document, request to see it before answering. Never refer to a document to refresh your memory without discussing it with your attorney first. In some states, referring to a document may require its disclosure, even if it is privileged.
14. Always Keep Your Guard Up
It is natural to feel nervous during a deposition. Do not relax too much or enjoy the attention, as it can lead to forgetting the rules. Stay alert, be on guard, and remember to:
Look and listen
Pause and think
Answer briefly
Remain courteous, and do not let the opposing attorney provoke you
15. Nothing is “Off the Record”
The court reporter records every word. Do not provide any answers that are “off the record.” Only discussions among attorneys when the reporter is instructed to stop recording are off the record.
What to Do After Your Deposition
Provide Information if Agreed
You and your attorney may agree to produce something to the other side during the deposition. Locate it immediately after the deposition and deliver it to your attorney as soon as possible.
Correct Errors in the Transcript
After the court reporter types the transcript, you will have limited time to make corrections. Read it carefully and make all necessary corrections. You will be stuck with it at trial if you do not correct it within the specified time, which may be as few as 20 days. Follow your attorney’s advice on making corrections.
Answers May Need to Be Supplemented
In some states, you must supplement any answers given at a deposition. If your answer changes after the deposition, inform your attorney immediately. For example, provide that information to your attorney if you learn of a new witness after your deposition.
Review Your Deposition Before Trial
Re-read your deposition testimony before going to trial. Most cases settle without reaching trial, but if yours does go to trial, it is important to know everything you have said under oath, whether in a deposition or interrogatories.
Contact NAEGELI Deposition & Trial Today
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