A deposition is a device commonly used in the “discovery” phase of a lawsuit, before trial. All parties in a lawsuit, through their attorneys, have a period of time after a suit is filed in which to discover facts about a case in order to prepare for trial. Depositions and interrogatories (questions to be answered in writing under oath) are two of the most commonly used.
Question: Why are depositions necessary?
Rustin: The attorneys on each side of a lawsuit want to get the testimony of the key players in the case pinned down onto a written transcript. In addition to documents related to the lawsuit, these transcripts from the depositions can play a big role in the lawsuit. Information gathered during the deposition will be used at trial if the lawsuit proceeds to that point.
Question: How does the process of taking a deposition work?
Rustin: Depositions are not the trial, even though they may be used at trial. Depositions are informal proceedings, usually taken in an attorney’s office. The judge is not present. There are attorneys from both sides, the witness, who is called the deponent, and a court reporter to take down the testimony. The opposing attorney deposes the witness.
The opposing attorney wants to get the witness to commit to a particular story about the case, and will explore all of the factual details of the story with that witness. That way, the witness will be unlikely to change the story later at trial, and if it does change, the lawyer can point it out by “impeaching” the witness with his or her prior deposition testimony.
I remind my clients that everything you say will be used against you, and it is the opposing attorney’s purpose to get you to say something that will hurt your case. Your deposition is not for your benefit; it is for the benefit of the other side. Your attorney likely will not ask you any questions. He is there to protect you from improper questioning.
The deposition usually lasts two to six hours and sometimes less. The scope of questions is unlimited, and attorneys have the right to ask broad questions on topics that may seem irrelevant. Many topics are covered in depositions that will never be admissible at trial. However, the witness must answer all questions unless their attorney instructs them not to answer.
Question: What does an attorney do to prep their client for a deposition?
Rustin: An attorney will meet with the client before the deposition to go over what we just discussed. The attorney will stress to the client to be completely honest with them and their staff about any bad things that might come out in the deposition. Anything discussed with your attorney and staff is privileged and confidential.
You and your attorney will review any interrogatories to you – written questions from the other side that you may have answered in writing earlier in the case – because the opposing attorney will likely use these in the deposition. The opposing attorney may ask you to bring documents to the deposition. Only bring documents that you are asked to produce. Don’t offer documents that are not requested. Your attorney will help you decide what was requested and what was not.
Question: What advice do you give your clients prior to a deposition?
Rustin: Listen to the questions completely before answering. Answer the questions as concisely as possible, with a simple “yes” or “no,” if the question does not require a longer response.
I tell my clients that they must answer each question as truthfully as they can, but also with as short an answer as possible. I advise them that, before answering any question, look straight at the attorney asking the question, listen carefully until the question is over, pause at least two or three seconds, and then politely and calmly give a concise answer.
If you say more than three sentences, you have probably said too much. Make sure that every answer is formal and controlled so that you are controlling the tempo of your deposition. If you pause before every question, regardless whether you need to or not, it is less obvious on the more difficult questions when you may actually need extra time to think before answering.
I tell my clients to always be polite because your conduct and demeanor may be more important than the answers you give. This is especially true if the deposition is recorded on video, which is common in high stakes or particularly contentious cases. Try to make a good impression. Remain calm, try not to show nervousness, and always respond courteously. If you don’t know the answer to a question, just say so. Don’t speculate or guess.
You may consult with your attorney during break times in the deposition, and sometimes during the deposition itself. Do not be afraid to ask your attorney questions if you feel it is important, but keep these consultations to a minimum. Your attorney cannot tell you how to answer but can help clarify the question.