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Preparing for a Deposition

GENERAL OVERVIEW
A deposition, although not occurring in the courtroom, is a formal judicial proceeding at which sworn testimony is taken from a witness in the form of a question-and-answer session. As a deponent (the person who is being asked questions), your responses to questions become a part of the “official” records of a case.

Deposition testimony is just as important as testimony at trial. All testimony, whether at trial or at a deposition, is taken under oath, and makes the witness subject to the penalty of perjury. A deposition is taken for one purpose, to be used at trial. A deposition is taken to use against a witness if that witness changes his or her story. As a witness, take your deposition seriously and prepare for your deposition.

Depositions usually take place in an attorney’s office, or some neutral place. Typically, those present at a deposition include:

* You,
* Your attorney,
* The opposing attorney,
* The court reporter, and
* Any other attorneys who represent others in the case.

YOUR APPEARANCE COUNTS

Your appearance and how you hold yourself (your demeanor) during your deposition are important for several reasons. First, your deposition may be videotaped, and later played to the jury at trial. Therefore, dress as you would if you had to appear in court for trial. Second, it is important that you project yourself to opposing counsel as a capable and confident witness – someone who knows what they are talking about.

Dress professionally and conservatively. Arrive well-groomed so that you appear your best. Your attitude should be pleasant and professional. Address everyone as “Sir” or “Madam.”

POINTERS FOR THE DEPOSITION

* DO NOT GET ANGRY OR ARGUE WITH COUNSEL

If you engage in an argument with counsel or one of the parties to the case, the other side has won. When arguing, you are likely to say something without thinking, which you will later come to regret. Remain calm – even if you start to get upset. You must avoid letting the attorney use your emotions against you.

* DO NOT GUESS THE MEANING OF A QUESTION

Be sure you know exactly what the attorney is asking before you give your response. Do not guess or speculate. If you are unsure what the attorney is getting at, ask the attorney to rephrase the question, and keep asking until you understand what he or she is asking.

* DO NOT VOLUNTEER INFORMATION

Once you have answered a question, stop talking. It is important to be truthful, but is also important to answer on the question asked. Many times, a witness will get caught up in talking about something and accidentally give out information that the attorney may never have thought to ask about.

One example would be the question, “What color was the traffic light when you first saw it?” Your answer should only be either 1. Red, 2. Yellow, 3. Green or 4. I don’t know. Nothing else.

* WAIT FOR THE ATTORNEY TO FINISH THE QUESTION BEFORE RESPONDING

You must make sure that you give yourself time to think about the question that was asked before you blurt out an answer. This is difficult because in our every-day lives, we often “speak over” another person as they are asking a question. Do not do that during a deposition. LISTEN to the question asked. Wait for a second after the attorney has finished the question, THINK about your answer, then respond. This will also give your attorney an opportunity to object to an improper question if necessary.

* DO NOT TREAT A DEPOSITION AS A MEMORY TEST

You cannot possibly be expected to remember every fact of every case for the last five (5) years! If you need some help remembering a fact, say so. “I know the bill lists the date I went to the doctor, can I see that to refresh my memory so I can answer your question?” This is an effective way to get HONEST, ACCURATE information to the attorney. If you have no memory of something or you simply do not know the answer to a question, you should state, “I don’t know” or “I don’t remember.”

COMMON TRICK QUESTIONS AT DEPOSITION

* COMPOUND QUESTIONS

Compound questions contain two or more questions disguised as one. By giving an answer to one, you may accidentally bind yourself to another. To spot a compound question, LISTEN carefully to the entire question and ask yourself whether the attorney is really asking more than one question at a time.

For example: “Wouldn’t you agree that the stop sign was clearly visible and that it had been raining for several hours at the time of the accident?

If you suspect that a question may be compound, you should say, “That sounds like more than one question, would you mind breaking that down for me?” Keep asking until you feel comfortable that only one question is being asked.

* QUESTIONS THAT ASSUME FACTS THAT ARE NOT TRUE

Be careful that the opposing attorney does not try to slip in a false statement with a question. By answering the question, you may inadvertently make an admission to the false statement.

For example: “After the car in front of you put in his turn signal, describe the chain of events that led to the wreck.”

If the driver of the car in front of you did not turn on his signal, the answering the question without clarifying that fact could seem like you acknowledge the turn signal was in fact on at the time of the wreck. Do not get caught up in the question and forget about that statement. If the question sounds like some part of it is incorrect, say so first in your answer. For the example above, a good response could be, “First, Mr. Attorney, let me make clear that the driver in front of me never turned on his turn signal, so I can’t really answer the question as you phrased it. However, I can describe how the wreck occurred...”

* SUMMARY QUESTIONS

Beware of the opposing attorney asking a blanket question that summarizes your testimony then asks you to agree with that statement.

For example: “Let me make sure that I understand, you’re saying that you were wearing your seatbelt, going 25 miles per hour, had your headlights on, were drunk, had your eyes on the road, saw the green light, and were hit by my client who ran a red light. Is that right?” Often, the attorney’s summary is inaccurate and you may agree to something that is not true.

In the above example, if the witness was listening to everything, the witness should not have agreed that he or she “was drunk.” LISTEN to the question carefully. Take a second to THINK about your response, and respond accordingly. If the attorney says something that is not true, do not agree with the attorney.

* TIME, SPEED, AND DISTANCE

Attorneys often use questions about time, speed and distance in an effort to make a witness look foolish or deceptive. This is done often in cases when HOW an accident happened is in dispute.

Questions seeking exact figures for time, speed or distance should be answered VERY carefully. Under almost every circumstance, a witness should answer questions about time, speed or distance as estimates, and not in exact figures. If being honest, most witnesses cannot say exactly how far, how fast, or how long some event or fact took place, but can only give estimates.

SOME DO’S AND DONT’S OF DEPOSITIONS

DO: Feel free to say, “I don’t know” or “I don’t understand.”
DO: Ask the attorney if he or she has a document that may refresh your memory.
DO: Treat everyone with respect.
DO: Ask to have a question repeated that you do not understand.
DO: Ask for a break if you need one.
DO: Answer questions with a “Yes” or “No” whenever possible.

DON’T: Use phrases like “In all honesty” or “I’m doing the best that I can.”
DON’T: Use the words NEVER or ALWAYS. These words get you into trouble quickly, as one exception to your answer will make you seem to be a liar.
DON’T: Treat a deposition as a conversation. Keep yourself trained to LISTEN to the questions.
DON’T: Give long, rambling answers. Answer only the question asked.
DON’T: Mutter. Speak clearly. Use the words “yes” or “no,” not “uh-huh” or “mm-hmm.”

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Washington, DC 20005

Phone: 202-296-0666

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