Deposition Instructions
As part of the pre-trial procedure, an attorney has the right to take a deposition. A deposition is the taking of sworn testimony by a potential witness in a trial. It is utilized to preserve testimony for a trial and to prepare for trial. A deposition can be utilized as evidence in a trial absent any objections to the respective portions of the deposition. A deposition is utilized to avoid surprise at the trial, and to preserve testimony while it is still fresh (since the trial is often months after the deposition). If a witness cannot be present at trial, the deposition can be read into evidence at the trial. A deposition can also be utilized to impeach a witness if his testimony is different during trial. Many of the questions will not be admissible during a trial, but you still have to answer, because the answer may help the attorney prepare their case for trial.
At the deposition, there is no judge or jury. After the deposition, a transcript of the deposition is made and a copy is provided to the attorneys and clients, with the original filed in court.
A deposition is often used to determine the strength of a case and for settlement. This is a first attempt to evaluate the witness to determine his credibility and truthfulness and how the witness will influence the case.
The attorney representing the deponent (if a party to the suit) will usually advise the deponent as to deposition rules, opposing counsel style, possible questions, and possible problems, and review the complaint. Some of the issues discussed are listed below. Prior to the deposition, the witness should review the complaint, his prior statements, admissions, interrogatories, and bills and injuries if a personal injury case. The witness should review all facts and notes so that he is not required to use notes during the deposition. The witness should revisit the scene of an accident or incident to review the situation.
The attorney will usually discuss the room layout and sitting arrangements. Usually, the attorney for the deponent will sit adjacent to the deponent. Opposing counsel will be seated across from the deponent. The court reporter will usually be seated with the opposing counsel.
A deposition usually begins with the court reporter administering an oath to the deponent (person being deposed). After that, the attorney that requested the deposition usually begins by introducing the persons present and rules for the deposition. The requesting attorney will then ask questions of the deponent followed by the opposing counsel.
Rules for Depositions:
1. Tell the truth. Never lie during a deposition. You are sworn to tell the truth. The attorney may ask you if you were prepared by the opposing counsel and what documents you looked at. If you are asked what you discussed with the opposing counsel, this can be objectionable, as it could violate attorney-client privilege or could violate attorney work product rules.
2. Before answering, understand the question. Make sure you understand the question, or you can be set up for an inaccurate answer. If you don’t understand, ask. . Listen to the question, not the tone with which it is asked (can be a trick). Don’t anticipate the question, or interrupt the question. Make sure your answer is your answer, not the answer the attorney is attempting to get you to answer.
3. Don’t guess about an answer, or if you do, let the attorney know that it is a guess. If guessing tell your thought process so as to get as near to the truth as possible. Be precise. If you do not know the answer, say so. Avoid excessive use of “in my opinion” or “I’m not sure” as it leads to an impression that you are not a credible witness. If you do not remember an answer, say so.
4. Take your time answering. Take as much time as you need to answer. Taking a second or two to answer allows the opposing attorney to object if necessary, and allows you to provide a thoughtful answer. If the deposition is not videotaped, the transcript does not reveal that you thought for several seconds before answering.
5. Answer the question asked. Don’t volunteer information not asked for. Think about the answer to ensure that you are answering the correct question. Never attempt to be helpful or teach the attorney about a subject. Don’t attempt to persuade the attorney that he is wrong and you are right. That just provides more information to the attorney. The most common mistake is to volunteer information. Answer the question and then stop. Do not fix the question if you think it is a bad question. Answer the question asked.
6. You are entitled to a fair question. If the definition of words is unclear, interrogate the interrogator. “What do you mean by….?”
7. Answer audibly. Head nods are not able to be put onto the transcript. Answer yes or no, not uh huh or nu huh.
8. Be relaxed. Prior to the deposition, do whatever you need to do to relax.
9. Be wary of questions concerning distance, speed, or time. These can lead to speculation. If you are guessing, say so. Be wary of questions summarizing your opinions or earlier testimony especially if it is not totally accurate. The attorney can ask you “loaded” inaccurate questions , so listen carefully for any misstatements. Be very wary of questions that start, “Don’t you agree” or “Isn’t it true”. Be wary of compound questions. If you are confused by a complicated question, ask to clarify the question.
10. Do not look to your attorney for assistance in your answer. You must provide the answer, not your attorney.
11. Be courteous, but firm. Answer questions respectfully and do not lose your temper. Use courtroom decorum and especially if the deposition is videotaped, don’t look bored, annoyed, distressed, or use annoying gestures or nervous habits. Your personal behavior, personality, and personal issues will be scrutinized by the attorney. Do not get upset. Don’t be cocky, but be confident. Never lose your temper as it could be a test. Avoid jokes and wisecracks.
12. Some attorneys will be confrontational. Do not argue or lose your temper. Your attorney may not object or fight the confrontation as part of his tactics, instead of yielding the battle to fit the opposing attorney’s tactics.
13. Admit if you have talked to lawyers. However, the conversation may be objected to.
14. Do not try to help the case by exaggerating or not telling the truth. Always tell the truth.
15. Do not bring papers with you to the deposition. The first question will usually be if you brought any papers, and the papers or notes can be examined and admitted into evidence.
16. Listen to the objections. In most cases, you will still have to answer the question, as the objection is for the judge in admitting that portion of the deposition into evidence. Objections made by counsel must be answered unless privileged or a violation of a court directive. Counsel may object, but the person still has to answer. The objection is to put on the record, so the issue can be raised before the court for a decision if that portion of the deposition is to be shown to the court. Remember, your attorney cannot coach you how to answer, by objecting.
17. Anticipate and prepare for difficult questions. Think about difficult questions in advance. Review your answers to interrogatories and requests for admissions as they are probable questions. Do not memorize your story, however.
18. Dress as for court. If the deposition is videotaped, you want to look presentable if the deposition is utilized in court. Your appearance can be determinative to the jury as to whether you are credible or not. Wear clean, neat clothing. Be clean and well groomed.
19. Do not smoke, chew gum or tap fingers, play with pencils, etc.
20. Speak clearly and slowly to allow accurate transcription of the deposition.
21. Get adequate rest before the deposition. Get a good night’s rest.
22. Don’t feel compelled to answer, just because there is a long silence. A long silence is often utilized to encourage someone to speak and give up information. Remember patience is a virtue. After a long silence, the silence can become more uncomfortable to the attorney and could unnerve him instead of you.
23. If you are given a document, read it entirely before answering. As long as questions are asked about a document, refer to the document. If the document is taken away, but questions are asked about it, get a copy to refer to while answering. Never answer a question about a document unless the document (the complete document) is in front of you. Study the document before answering, and answer only if there is a complete document in front of you.
24. If you are interrupted by the attorney when answering a question, continue to complete your answer.
25. Do not promise to obtain additional information or do something after the deposition. If asked, state that you will discuss this with your attorney.
26. Correct prior answers if you determine that they were inaccurate.
27. Do not assume false facts. If a hypothetical question is inaccurate answer only if your attorney tells you to answer, and only if there are sufficient facts, circumstances, and conditions to allow an accurate response. If not, then tell the attorney that there are not sufficient facts to make an opinion and answer under oath.
28. If asked the same question over and over, answer truthfully and give exactly the same answer. You can say, “same question, same answer….”
29. Testify from your own knowledge, not someone else’s. Do not assume facts.
30. If you are responsible for an action, take responsibility and do not attempt to cover-up. Remember you are under oath.
31. Ask for a break if you need one, or if you need to talk to your attorney. If you do talk to your attorney, there can be a chance that the conversation can be overheard, and a question asked about the conversation. If asked about the discussion with your attorney, an objection can be raised, but if asked if your attorney told you how to answer, the answer should always be “no.”
32. Do not make concessions to the attorney questioning—that will only prolong questioning since you are agreeing with him.
33. If you are injured, be prepared to show the injuries suffered. For personal injuries, be prepared to discuss lost wages, medical bills, injuries.
34. Be careful with off the record statements. Attorneys may make off the record statements, but you can be asked on the record about off the record statements.
35. Do not exaggerate. Tell the truth. Do not try to hide the truth or divert the attorney from the truth. Assume that the attorney has done his homework and will catch you if you lie or exaggerate.
36. Don’t box yourself in. Do not make definitive limiting statements that limit your future answers, such as “That’s the whole story” or “Nothing else happened.” Avoid words such as always, all, never, and ever.
37. Do not waive your signature on a deposition. Read it entirely and sign before it is filed with the court. Correct any mistakes. Discuss errors with your attorney, but your attorney cannot tell you how to answer. As you review the document, make notes about errors. Think through errors before making corrections on the errata sheet. Remember you can correct errors on the errata sheet, but the original answer is not deleted from the transcript.
38. After the deposition, if you discover errors or additional information, inform your attorney.
Be truthful, honest, earnest, and fair, and treat all parties with respect, and you will be successful in your deposition.
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