Questions You Want Answered > Discovery > My deposition is going to be taken. What do I need to know?
At an oral deposition, the other attorney can ask you any question which may lead to the discovery of admissible evidence. The questions and answers themselves do not have to be directly relevant to your case, only that the answers could lead to such information. The deposition of a party, which is what you are, may be used for any purpose in court. It can even be used as your testimony, and that is in addition to being used to add to or contradict your testimony. It is very important to your case. How you appear at deposition and how you answer questions, as well as what you say, may determine whether the other side is willing to settle the matter and on what terms.
To prepare for your deposition, you should review your Answers to Interrogatories, study the documents we produced (please contact me if you need copies), and any admissions. And remember, anyone who testifies differently in court than they did in written interrogatories or at an oral deposition runs the risk of having their prior inconsistency being rubbed right in their nose as they sit there on the witness stand. The other attorney will point out to the court (judge, jury, etc.) that you’ve changed your story - and you may be made out to look like a liar, and if you lie about one thing, the court assumes you will lie about other things for which you have not yet been caught. Even worse, you also run the risk of being charged with the crime of perjury. This is rarely done, but it is a possibility and it does happen (Mark Fuhrman, for example, during the O.J. Simpson criminal trial).
Remember these basic rules:
1. Tell the truth. No fudging, no shading, no exceptions to this rule. Your answers are under an oath to tell the truth.
2. Your testimony is extremely important to the case. Remember, what may seem obvious to you may be revelation to the lawyer deposing you. You must take the deposition seriously and be prepared.
3. This is serious business. No chit-chat or small talk with the other lawyer. No sarcasm, no facetious remarks. The cold transcribed record will not get the joke and it will reflect badly on your testimony. Remember: No matter what, no matter how nice he or she may seem, the other lawyer is not your friend.
4. Listen to the question. Take your time. Make sure you understand before you answer. If there is any part of it you do not understand, say so, and ask the attorney to repeat or rephrase it so you understand what you are answering.
5. Answer the question – not some other question – just the question you are asked. Say no more than is necessary to answer the question asked. Do not volunteer extra information or explanations. In other words, you should say as little as possible to answer the question, if you can answer it yes or no, do so without explanation. If the other attorney wants more information, let him ask follow up questions, do not volunteer. If you must explain, give out as little information as possible. Do not tell the examiner where he or she may find the answer, either. At a deposition you should adopt a defensive posture. This is not your opportunity to tell the whole story. It is not an opportunity to convince the other lawyer that you are right and their client is wrong. It is not your day in court. That will come later, at the trial, when your own attorney asks you questions on direct examination. All you need to do is respond to the questions asked.
6. Do not guess. If you do not know the answer, say so. If you do not remember the answer, say so. It is your job to give the answers you know – not to speculate about the answers you do not know. It is okay not to know or remember every detail or date. But if you answer, that is the answer that will follow you throughout this lawsuit. Answer only what you know.
7. You are the witness – not the lawyer. Do not argue with the lawyer for the other side. Do not object. Do not try to sell the case. Just answer the questions.
8. Watch out for questions that paraphrase your answers. A lot of times the lawyer may take your ideas and put them in other words – changing your meaning in ways that you might not catch at the time. If the lawyer asks if his paraphrasing is accurate, you are entitled to say that you would rather stand on your answer and stick with the way you put it. Do not allow the other lawyer to paraphrase your answer.
9. Beware of absolutes. Watch out for questions that use the words always and never. Remember, do not ever answer "absolutely!"
10. If asked, admit preparing for the deposition. There is nothing wrong in going over your testimony in advance.
11. If your attorney objects – listen. If you are talking when they object, stop talking at once. An objection is a danger signal. It says you should put your mouth in the low gear and move your brain into high gear. Even if you think you heard and understood the question before the objection, ask to hear it again.
12. Your attorney is not allowed to interfere with the other lawyer’s questioning of you. This means that your attorney may occasionally object, but is normally not allowed to say anything, nor do anything to affect your answers.
13. If you think you have made a mistake in your testimony, let your attorney know before the deposition is over. They can fix it. Mistakes cannot correct themselves. Make sure that you ask for a brief break, and then explain the mistake to your attorney, out of earshot of the other attorney or client.
14. If you get tired, ask for break. If you need to go to the bathroom or to get cup of coffee, say so. And if you start to get argumentative or talkative – which is natural when you get tired – your attorney may ask for break. Listen to them and take the break. You can also ask for a break to talk to your attorney. This is the time to fix any mistakes.
15. Unless the other attorney requests you to bring documents, do not bring any documents to your deposition.
16. Finally, what to wear to the deposition. Part of what is happening at the deposition is the other side’s attorney sizing you up and determining how believable you are and how you might come across to the judge. If you dress down for the deposition, your believability goes down. So, dress up for your deposition. If you have a suit, wear it, the lawyers may not be wearing their suits - who cares, you are the one with the image to protect. If you do not have a suit, for men, wear a white shirt, tie, and slacks; for women, wear a nice blouse and either a nice skirt or slacks. These are the "uniforms" of the court. The key is to make yourself look trustworthy and believable.
Once again, please take the time to go over this information multiple times before you come to your attorney's office to prepare. The better prepared you are for that meeting, the better your attorney can prepare you for your deposition. The better prepared you are for your deposition, the more likely this case will settle and the better result you will get. If the case does eventually go to trial, a good deposition is good preparation for testifying at trial.
Last updated on September 5, 2013 by Karen Robbins, Attorney at Law