The purpose of this article is to acquaint you with depositions and the deposition process. Under the rules of practice in most states, each side in the lawsuit has the right to take the deposition of the opposing party and any witnesses. Thus, when you become either a Plaintiff or Defendant or witness in any litigation, the opposing party may require you to appear at a specified time and place and give your oral testimony under oath. The testimony is recorded by shorthand or mechanical means, and transcribed for future use in the lawsuit. There may also be a video and audio recording of the deposition.
Your deposition, properly given, can be very helpful in advancing your case, either by way of helping to promote settlement or by assisting you and your attorney in preparing for the trial. What you do at your deposition can help or hurt the case, depending upon your attitude, truthfulness and appearance.
The following information and instructions are offered in an effort to better acquaint you with what is expected of you and how you can be an effective witness in the discovery deposition. The purpose is to help you to begin to think ahead of time about the facts and what has happened to you, and to prepare yourself to give your testimony. This information, along with the matters you cover when you meet with your attorney before your deposition, will ensure that you are well prepared and that you put your best foot forward when the time comes.
1. WHAT IS A DEPOSITION?
In its simplest form, a deposition is the oral testimony of a witness taken under oath before trial. The basic rule is simply that the questions asked must relate to information that is relevant to the case and/or capable of leading to the discovery of relevant facts. As stated above, both the parties (plaintiff and defendant) and witnesses typically give depositions in civil lawsuits like yours.
Attorneys representing opposing parties (one attorney for each opposing party) in the lawsuit attend depositions and are permitted to ask questions of the person who is giving his or her deposition. At your deposition, attorneys for each party will be in attendance and will be asking you questions relating to the accident and your injuries which are the basis of this lawsuit. There is a small possibility that your attorney will also ask you some questions after the other attorney(s) are finished, but your attorney probably will not ask any questions.
Your testimony (everything you say) will be under oath, and in all likelihood, will be videotaped. In addition to the videotape, your testimony will be recorded by an official court reporter, who will prepare a written transcript of your testimony. This transcript and the videotape may be used at trial by opposing attorneys to attempt to misconstrue your testimony, or may simply be used at trial in your absence. You will have an opportunity to read the transcript and make corrections to it.
As you can understand, a deposition is a very important procedure in the progression of your lawsuit. Therefore, this article will give you some pointers about how to conduct yourself and how to testify at your scheduled deposition. The purpose of this article, however, is not to frighten you or make you apprehensive. Instead, it is intended to prompt your thinking ahead of time about the facts and your damages relating to the accident and to mentally prepare you for presenting yourself and your testimony at the deposition. If you thoughtfully consider and follow the instructions below, you will do fine.
2. PURPOSE OF DEPOSITIONS:
The purpose of the deposition is to explore the recollection of the witness as to all the facts which he or she may be aware of, which will assist the lawyers in the preparation and trial of the lawsuit. It also gives the lawyers and all interested persons a chance to see whether the witness makes a favorable impression and how well the witness can express himself/herself.
In your case, the attorney(s) representing the opposing parties in the lawsuit are generally taking your deposition for one or more of the following reasons:
- To find out what facts you know regarding the issues in the lawsuit;
- To look for information you may have that is favorable to the opposing side of the case;
- To get you committed—or “pin you down”—to statements under oath so that you will not be able to change those statements later;
- To look for ways to discredit your testimony or to discredit the testimony given by other witnesses pertaining to the same issues; and
- To get an overall impression of your appearance and the way you conduct yourself while giving your testimony and how that impression might affect your credibility before a judge or jury at trial.
3. SUBJECTS LIKELY TO BE COVERED
The following are categories of information that are likely to be covered at your deposition. This list is not exhaustive or all-inclusive—other topics may be covered. By the same token, not all of these topics will necessarily be covered. Instead, the list is provided to give you an idea of the kinds of subjects typically covered, so that you have a better idea of what to expect and are not likely to be caught off-guard.
1. Background information:
- Date and place of birth
- Criminal activities, arrests, convictions and imprisonment
- General health
- Previous accidents and injuries
- Previous claims or lawsuits
- Previous medical care and treatment
- List of doctors seen prior to the accident and reasons for seeing them
- Previous hospitalizations
- Regular medications taken, if any
- Household activities
- Personal habits
- Social activities
- Involvement in athletics and sports
- General activities
- Marriages and children
- Family life
2. Information concerning the incident and your injuries, losses and damages:
- Chronology of events, step-by-step
- Conversations with parties
- Damages to your vehicle/property
- Repairs/estimates of damage
- Physical complaints
- Psychological complaints
- Medical treatment
- Psychological treatment, if any
- Medical bills
- Devices & aids
- Nursing care
- Pain & suffering
- Fears, worries and concerns experienced
- Loss of earnings
- Loss of earning capacity (reduced ability to earn)
- Loss of ability or reduced ability to perform household services and activities of daily living
- Scarring or other disfigurement
- Effects on your marriage, family life and friendships
- Effects on your leisure and recreational activities and hobbies
4. YOUR PHYSICAL APPEARANCE AND YOUR DEMEANOR:
You should remember that the first opportunity the opposing counsel has to see you will be during your deposition. It is important that you make a good impression upon opposing counsel and his or her client. You should arrive at the deposition dressed as you would if you were going to court to appear before the jury.
Dress in a moderate fashion. Flashy dressing takes the judge’s and jury’s attention away from what you are saying and causes the listener to focus on how you look. Neither your hair style, your makeup nor your clothes should call undue attention to you. Avoid clothes that fit too tight. Excess gold and jewelry will also lead to negative results. If you have any question about a particular item of attire, please check with your attorney before you select the item. This will prevent your wearing something inappropriate that may negatively affect your impression as a witness.
- You should be clean.
- You should wear neat, pressed clothing.
- Treat all persons in the deposition room with respect.
- Come prepared to exhibit any and all injuries which you have suffered.
- Have a good recollection of the facts and the damages caused as a result of your injury.
- Consider this an important and solemn occasion and avoid getting too comfortable or casual with opposing counsel or his or her client.
5. HOW TO CONDUCT YOURSELF WHILE GIVING YOUR TESTIMONY:
1. Tell the truth.
You are under oath. If you lie, you will be committing perjury. The truth can never really hurt your case like a lie can. Your lawyer can explain the circumstances and justify the truth even if it is not particularly favorable to your case, but there is no explaining why a witness lied or concealed the truth. Deliberate concealment of the truth, even with regard to a small issue in the case will be very damaging to your credibility at the trial and will actually hurt your case.
2. Do not bring any documents into the deposition room unless specifically approved by your attorney.
Anything you bring with you may be subject to discovery by the opposing attorneys. That is, whatever materials you bring to the deposition may have to be provided to the opposing attorneys. Therefore, do not bring any notes, documents, diaries, written statements, letters or other materials to the deposition without asking your attorney first. And do not, under any circumstances, bring this article into the room with you when you testify.
If you have documents that you wish to discuss with your attorney, feel free to bring them with you to your pre-deposition meeting with your attorney. You can talk about the document and your concerns with your attorney, and he or she can advise you as to whether or not you should actually bring the document into the deposition room at the time of the deposition.
3. Never lose your temper or argue with the opposing lawyer.
The opposing attorney may try to get you angry or excited, in the hope that you will make a mistake or say something inconsistent with your earlier testimony or with the facts of the case. You should be aware of this tactic and avoid becoming angry or excited. If you find yourself getting angry and unable to calm down, ask to take a break. Under no circumstances should you argue with the attorney. That is your attorney’s job.
4. However, do not minimize your feelings about the accident or how your injuries have affected you and your family.
It is not unusual for witnesses to begin crying when the area of testimony reaches a particularly sensitive topic. Therefore, do not feel that you have to be stoic or that you must hide your feelings about what has happened to you and your family, by attempting to prevent your emotions from surfacing. If you do not allow the other attorneys to see that the accident and your damages are upsetting to you, the attorneys will assume (and will report to their clients) that these things don’t seem to bother you. A jury will reach the same conclusion.
5. Speak clearly and answer out loud.
Answering by nodding or shaking your head, or by saying “Uh-huh” or “Huh-uh,” rather than saying “Yes” or “No” cannot be recorded by the court reporter. Holding up your hands to indicate a distance also cannot be recorded by the court reporter. There may or may not be a video recording of your deposition, and even if there is, a non-verbal response or hand gesture may or may not be clear on the recording, so answer out loud, in words.
6. Listen carefully to the question.
Pay careful attention to the question and never answer it unless you fully understand it. If you don’t understand the question, you should immediately say so. The other attorney will have to restate the question until you understand it. If you do not hear the question, ask the attorney to repeat it. He or she must do so.
Listen to the exact question, and answer precisely what you are asked. A “when” question requires only a “time” response; a “who” question requires only a person or name response; a “where” question requires only a “location” response. Listening to the exact question is surprisingly very difficult unless you pay close attention and concentrate. How can you answer correctly if you don’t know the question? Often a person who is not paying close attention thinks he heard the question, when actually he did not. Don’t make that mistake—listen carefully.
7. If you do not understand the question, ask that it be explained.
8. Watch for compound questions.
Compound questions actually contain two or more questions and can be very misleading. For example, “did you notice your back problems after you began seeing the doctor your attorney referred you to?”
Two separate questions are really being asked, one about the referral to a doctor and a second one about when you began to experience back problems.
If your attorney did refer you to a doctor, but you noticed the problems before you began seeing the doctor, then a simple “yes” or “no” would be very misleading. Therefore, you should separate all compound questions into their individual parts and answer them separately.
9. Watch out for trick questions.
If you understand the trick, you should not have any trouble dealing with the question. Take for example, the “have you stopped beating your wife?” question. The attorney may attempt to get you to admit to a fact that is not in evidence or is untrue by asking a trick question such as, “Have you stopped beating your wife?” This question is a trick. It assumes a fact not yet established and probably untrue; that is, that you have in the past beat your wife. Although your attorney will generally object to this type of question, if your attorney does not, or if you are required to answer, you should respond: “I never beat my wife.” A “yes” answer would have meant you once beat your wife, but have stopped, and a “no” answer would mean that you beat her and haven’t stopped. This is similar to the compound question about seeing the doctor mentioned above.
Additionally, opposing counsel may attempt to mischaracterize or misstate your previous testimony in a question. Therefore, be alert to any question that contains a summary of your earlier testimony or some preliminary statement of fact, and if it does not reflect what you said before or is untrue, say so.
10. Take your time answering the question.
Do not begin giving your answer until you have thought about the question and formulated your answer in your mind.
When speaking informally, such as to a friend or family member, we tend to stray away from using correct grammar. Also, we sometimes tend to include a response to the other person’s comments or questions before they even say anything, in anticipation of what we think that person is going to say.
Needless to say, your deposition testimony is not meant to be a casual conversation. Never try to anticipate what the question is before the attorney asks the question and never begin to answer before the attorney has finished asking the question. Once a question has been asked, first consider the question carefully and think through your answer before you respond. Take as much time as you need. There is no time limit. This way, you will have a better chance to speak correctly and clearly.
It may be easiest for you to think about this as being somewhat like the way you would fill out a written form, such as a credit application or job application. You do not start writing your answer on the form until you have thought about the question and decided how to answer it. You should do the same thing when you answer questions in your deposition.
11. Answer all questions in a direct and concise manner then STOP TALKING.
12. NEVER VOLUNTEER any information.
Wait until the question is asked, answer it, and STOP. This is critically important advice. Volunteered information cannot help your case and may harm it by allowing the opposing attorney to think up additional questions to ask. If the question can honestly be answered with a “yes” or “no,” do not volunteer a further answer. For example, if you are asked if you have a certain item which you don’t have but which you believe that your attorney’s office has, you should simply say “no,” rather than, “No, my lawyer has that item.”
In addition, do not give longwinded answers and don’t ramble. Instead, answer questions as you would if you were completing a written form. For example, as mentioned above, you wouldn’t elaborate or ramble on, and on in your written answers to questions on a job or credit application—there usually is only enough room for a short answer. Answer questions in depositions the same way.
All those who have been injured, or who are related to a family member who has been injured because of negligence, have a natural urge to tell their whole story even if they are not asked to tell the whole story. Let’s say the opposing attorney asks you where you were going at the time of the accident. The wrong answer would be: “I was on my way to work but normally at that time I would still be at home. You see, a friend’s car was in the shop that day, and I dropped her off at work early…” All of those facts may be true and helpful to your case, but RESIST THIS URGE. The correct response to that question would have been: “I was on my way to work.” Merely answer the question and then stop talking! The time to tell your story will be at trial when a judge and jury are there to hear you.
13. Stick to the facts and testify to only that which you personally know.
You know what you have seen, heard, tasted, touched or felt. If you don’t know certain information, do not give in to persistent questioning on that same issue. Do not promise to get information you don’t have; unless your attorney advises it. If you know the answer to a question at the time it is asked, then answer it; but do not agree to look up anything in the future or supplement the answer you are then giving; unless your attorney says so.
14. Do not magnify or exaggerate the injuries or losses.
This is a situation in which “less is more” to some extent. Give a complete and accurate description, but do not try to improve upon the facts by stretching them. Such efforts are easily exposed by the other side and are usually obvious to a jury. Instead of helping your case, you actually hurt it.
15. If you do not know, admit it.
Some witnesses think they should have an answer for every question asked. You cannot know all the facts, and you do yourself a disservice if you attempt to testify to facts with which you are not acquainted. It is IMPERATIVE that you be HONEST and STRAIGHTFORWARD in your testimony.
16. If you don’t remember, don’t pretend you can.
There will be times when you cannot remember certain facts. If this happens, don’t be afraid to say, “I can’t remember.” On the other hand, if you do remember—answer. A witness who pretends not to remember may be discredited if later he tries to convince a judge or jury that he now remembers. Never become bogged down in trying to remember exact dates and times. They are not that important; even if the other attorney acts like they are. Most of the time, we have already established the correct date and time through the records, and the attorney is just trying to see if he or she can confuse you. The law does not require that you remember exact dates and times. You should, however, have a good approximation if asked.
Never, never say a date, time or distance if you do not know it to be wholly accurate, and if you are giving only an approximation, you must state that it is only an estimate or approximation. Also, do not let the attorney put an exact date and time into the question if you have not agreed to the accuracy of that date and time. Remember that when you answer a question, essentially you have adopted the facts in that question. Be careful!
17. Do not confuse “I don’t know” with “I don’t remember.”
You should never answer “I don’t remember,” when you really mean “I don’t know.”
“I don’t remember” means that you once knew the fact; but you can’t recall it at the moment. This response allows the attorney to try to make you remember in any way he or she can, for as long as he or she cares to pursue it. “I don’t know,” on the other hand, means that you never knew the fact, and there is nothing he can do or say to get an answer from you. “I don’t know” ends the inquiry on that issue. It is the better answer when true.
Your attorney will not let the opposing attorney continue to ask you questions when you have answered “I don’t know.” However, your attorney cannot stop the attorney from asking you more questions when you answer “I don’t remember.”
Again, think about what you really mean and don’t confuse “I don’t know” and “I don’t remember.” For example: let’s say you were the passenger in an automobile and did not see the traffic light before the crash. If the attorney asks you what color the light was right before the crash, do not answer “I don’t remember.” Such a response means that you did see the traffic light before the crash; but now you have forgotten the color. You have unknowingly given an untruthful response. This will also lead to a lot of other questions. The correct response in this situation would have been, “I don’t know”; thus, that subject matter would be closed.
18. Do not try to memorize your story.
Nothing is easier to detect than a memorized or rehearsed answer. And nothing is less believable. You only need to be familiar enough with the facts to be confident. Neither you nor your attorney can possibly anticipate every question the other attorney will ask. If you have thought about your testimony and are confident of its accuracy, then you will not become confused or give an incorrect answer.
Besides, the law does not require perfection, and justice requires only that a witness tell his or her story to the best of his or her ability.
19. Avoid the use of vague or ambiguous terms, or terms that imply that you are uncertain about your answer, such as:
I may have
I might have
Correct me if I’m wrong
If I’m not mistaken
Let me see
20. Never guess.
If you can only answer a question by speculating (guessing), then the correct answer is “I don’t know.” Quite frequently, you will be asked a question, and despite the fact that you feel you should know the answer, you do not. You may be tempted to substitute a logical guess at what the answer should be; but do not. Even though you may appear ignorant or evasive by saying you don’t know; you should nevertheless say that you do not know the answer—if you do not know.
21. You may, however, make an estimate or approximation, and you should do so when you can give a reasonable estimate or approximation.
There is a difference between guessing and approximating or estimating. As stated above, if you can only answer a question by guessing, then the correct answer is “I don’t know.” However, if you have enough information to make a reasonable estimate, then you should do so, BUT you must make it clear that you are giving an approximation or estimate rather than an exact answer.
22. Always finish your answer.
You have the right to complete your answer without interruption by the opposing attorney asking the question. The attorney may attempt to cut you off in the middle of your sentence by interjecting another question. Your uncompleted answer could later be misleading. If the opposing attorney does try to interrupt you, don’t get mad or argue with the attorney. Wait until the attorney finishes and let him or her know that you have not completed the answer that he or she interrupted.
23. Exception: If your attorney interrupts you, stop speaking.
There may be times when your attorney will object to a particular question or to a line of questioning that the opposing attorney is asking. Your attorney however will generally not make very many objections.
If your attorney does object to a question, do not answer the question until after he or she has finished and advised you to go ahead and complete your answer.
If your attorney tells you not to answer a question, you should refuse to do so.
When your attorney objects to a question, you should listen very carefully because it may reveal to you the unfair nature of the question. For example, your attorney may object on the basis that the question is confusing or misleading. If told to answer, you should ask the opposing attorney to clarify the question before you answer. Similarly, if your attorney objects to the question as being one you answered already, you should try to remember how you answered the question the first time, and answer it the same way.
24. Never attempt to explain or justify your answer.
You are there to give facts as you know them. You are not supposed to apologize or attempt to justify those facts. Any attempt to do so would make it appear as if you doubt the truth or believability of your own testimony. Do not try to convince the opposing attorney that your version is correct. That is your attorney’s job.
25. Correct your answer.
If you realize that you have previously given an incorrect or inaccurate answer, you have a right to correct your prior answer, and you should do so. For example, you can say: “I gave an answer a few minutes ago I need to correct …”
26. Be consistent.
The attorney may ask the same question in several different ways in order to get you to change your answer. You should be aware of these repetitive questions, and if your first answer was correct—stick to it. If, after reflection, you decide that your original answer was incorrect; then, as noted before, don’t be afraid to say that your earlier testimony was mistaken.
27. Answer all questions unless your attorney instructs you otherwise.
You are required to answer every question the attorney asks you, unless your attorney (or during trial, the judge) instructs you not to do so. Such instructions are very rare, and you should assume you will have to answer every question. It is not for you to determine if the question is proper or not.
28. Ask to see every document you are questioned about and look at the document before you answer questions about it.
If you are asked about a document or a statement you or someone else is supposed to have made, ask to see if before answering the question, even if you have seen the document many times before. Look at it carefully and do not assume that the document says exactly what the lawyer has said in his question.
Also, be sure that the part that the lawyer is asking you about is not being taken out of context. He or she may be correctly quoting one part of the document, but leaving out another portion that is necessary to accurately convey the meaning. Without arguing with the lawyer, you are permitted to point out that an important part has been left out of the lawyer’s question.
You might say, for example, “Yes, the document says that, but in the next sentence it also says …”
29. Do not assist opposing attorneys.
Sometimes, an opposing attorney will be poorly prepared, misinformed or confused about even the most basic facts. Often, however, the attorney’s apparent confusion is an act to make you lower your guard. Whether real or not, confusion on the part of the opposing attorney is his or her problem, not yours. Do not volunteer to help. In fact, your duty is not to help. Let the attorney remain confused. Answer only the exact question that you are asked. Again, volunteer nothing.
30. You are permitted to take breaks, and you should take breaks when you need them.
As mentioned earlier, you are allowed to take breaks during the deposition, at which time the court reporter will go “off the record.” Please keep in mind that you may stop the proceeding for a break at any time that you begin to feel tired, angry, or thirsty, you need a restroom break, or you need to talk to your attorney privately.
Generally speaking, you can take any time you need to take a break. You do not need to give a reason for taking a break, and it is best that you NOT give a reason for the break. You simply need to say that you need a break. We will then go off the record, and you can leave the deposition room.
One exception to this is that except in unusual circumstances, you cannot take a break before you answer a question that has been asked or during the middle of your answer.
31. Consider all discussions to be “on the record.”
You should assume that everything you say in the presence of the other side is on the record, even if the court reporter is not recording your statements. The opposing attorney is free to ask you all about your “off the record” remarks once you are back “on the record.” Besides that, on many occasions, the court reporters do not “go off the record” as quickly as we think they do.
32. Never joke or be sarcastic.
The humor will not be apparent on the written transcript and will probably make you look crude, smart-aleck and scornful about the truth. For the same reason, do not give flippant or sarcastic answers or use vulgar language.
33. Do not “fraternize” with the opposing attorney or anyone else at the deposition.
Remember that the other attorney is your legal adversary or enemy. Friendliness could cause you to drop your guard. Also, you never know who is watching your conduct and recording what you do. Additionally, as stated above, the court reporter may not be “off the record.”
34. Do not be disturbed by the number of questions or the length of the questioning.
The attorney is allowed to ask you virtually anything. Many questions may appear to you to be absolutely irrelevant, but are legally permitted. Do not get anxious if the attorney goes “way out in left field.” Within broad limits, the attorney is allowed to ask any question he or she wants. Remember that your attorney has the same rights when he or she is questioning you, the defendant and any witnesses for the other side.
The duration of a deposition varies from case to case. Unfortunately, no one can tell you the exact length of time your deposition will take. One can never anticipate this, no matter how complex the case may or may not be. Even in very simple cases, it is not uncommon for the deposition to last two hours. In rare cases, a deposition will take more than a day to complete. However, generally a deposition does not take all day, but does last at least several hours. Nevertheless, don’t be surprised if it lasts the better part of the day.
35. Do not be concerned by the one-sided nature of a deposition.
Unlike a trial, a deposition is one sided. When the opposing side is taking your deposition, their attorneys will ask questions and you must answer. Your attorney’s verbal role is extremely limited in the deposition, because he or she will reserve most of his or her questions and objections until the trial. This is strategically to your advantage. So, do not expect your attorney to jump up and object to every third or fourth question—it will look as if your attorney is trying to hide something or that your attorney is afraid that you are doing a bad job. Your attorney will be there to protect you from truly objectionable questions, and you can be assured that your attorney will object, where appropriate.
36. Do not expect a complete victory.
Do not expect your completed testimony to be perfect. Conflicts of testimony appear in almost every case; almost every witness wishes he or she could have remembered more. Do not be disheartened by such minor imperfections.
6. HOW TO PREPARE FOR YOUR DEPOSITION:
As stated above, it is impossible to predict every question that will be asked, every topic that will be covered or how long a deposition will last. However, it is possible to be prepared, by familiarizing yourself with the points covered above, and by following these guidelines BEFORE your deposition. You should devote considerable time to the following.
1. Get a good night’s sleep.
Believe it or not, sitting at a deposition or a trial all day is very tiring. Tired witnesses easily become confused. Get a good night’s sleep and come refreshed. Never take alcohol or drugs of any kind before testifying. Your attorney depends on your alertness.
2. Know your facts.
This is not like preparing for a test over information that someone else has given you. You are going to testify about what has happened to you, so you know the answers. Remember, you know about your life, your background and your family, and you have lived through the accident and the events that have happened since. Go over these things in your mind before you meet with your attorney to prepare for your deposition.
3. Review your own documents, including documents you have provided to your attorney and any answers you have provided to written questions, called interrogatories.
4. Review the points covered above.
5. Meet with your attorney before your deposition.
Your attorney will schedule a date and time for you to meet before the deposition. This is your chance to go over the entire process in person with your lawyer and to review the specific facts of your case so that your lawyer can help you do your best.
REMEMBER, perhaps the most important aspect of this lawsuit is YOU and the impressions you make. You must give the appearance of earnestness, fairness and honesty. When you give your deposition, keep in mind the suggestions in this article.