Tips for Giving a Deposition

It's not as challenging as you might think

Image by Maritsa Patrinos. © The Balance 2019

You've received a subpoena from a court telling you that you must give a deposition in a lawsuit. If the thought of giving a deposition panics you, you're not alone. But knowing what's going to happen in the deposition can relieve some of your concerns.

What are Depositions?

Depositions are the sworn statements of a witness in a lawsuit, in an out-of-court situation. They are used to gather evidence and information; think of them like fact-finding missions similar to testifying in court.

In most cases, depositions are taken before a trial, but they might also be taken before the case is filed with the court or even after the trial. The attorneys may use the deposition to get new information, confirm facts they already know, or just assess the other side in the lawsuit.

Attorneys on both sides of the case are present, so they can ask questions and hear the answers. Depositions are done in a question-and-answer format. Attorneys will ask you a series of questions to determine what knowledge you have about the case.

The person giving the deposition is called the deponent. The deponent is deposed (questioned) during the process. 

Why Depositions are Necessary

Depositions are a vital part of the discovery process of a lawsuit. Both sides to the case are legally bound to share the information they possess. Both the defense and the prosecution have a right to know in advance what all witnesses will say at trial, so they can prepare their cases.

You might be a witness or you might be either the plaintiff (the person who starts the lawsuit) or the defendant (the person the lawsuit is brought against). You may be deposed as an individual, but you might be asked questions as an employee or independent contractor (someone who provides outside services to a business).

The Deposition Process 

Depositions typically take place in the law office conference room of the attorney who has requested them. There will be several attorneys present for both sides and they all can ask you questions. You can use notes if you need them.

Depositions are recorded in case you, the witness, are unable to later testify at trial for some reason. One side or both sides may record the deposition or there may be a legal stenographer to take notes.

With the judge's permission, the jurors can view or listen to the deposition instead of having you testify in court.

Getting an Attorney for a Deposition

You are entitled to have your own attorney present at a deposition, just as you could if you were testifying in court or if you were one of the parties in the trial. You already will have an attorney if you are a party in the case, and if you are representing your company, they may give you an attorney.

If you receive a deposition for something related to your work with your company, let your supervisor or someone in authority know about the deposition. Even if the company gives you an attorney, you may want to get your own.

You might decide that you don't need a lawyer present if you're just a witness and the case is fairly simple. It's really up to you. You might want to look for a litigation attorney who specializes in this kind of law.

If an attorney is hammering you and you begin to feel uncomfortable and at a disadvantage, you have the right to temporarily pull the plug on the proceedings to give you time to get a lawyer. The deposition will be rescheduled.

You might also have some legal or personal issues that you're worried about exposing. Having an attorney is a good idea in this case as well. You can discuss questions with the attorney before you answer, or your attorney can attempt to stop a question from being asked, although this doesn't always work.

Preparation

Be prepared. Spend some time before the deposition date thinking about the event or circumstances you'll be questioned about. You might want to make some notes to jog your memory. You can bring the notes with you to the deposition.

Be professional; giving a deposition is the same as being a witness in a trial. This means dressing professionally. You don't have to wear a suit or a dress, but jeans, cut-offs, and tank tops are definitely not options. Wear a shirt rather than a T-shirt. Don't overdo makeup or hairstyle.

How to Answer

Being professional also means sitting up straight, looking people in the eyes, and being pleasant but not silly. Remember, this is all being recorded. Say "yes" or "no." Don't just nod. The audio recorder can't see you, and the action can't be transcribed.

Stay away from definite words like "always" and "never." As a practical matter, very few things in life always happen or never happen. The attorney questioning you knows this so you'll just lose credibility.

Don't speak unless you're spoken to and address people by their full names, such as "Ms. Smith" rather than "Sally." A deposition is a little more relaxed than a courtroom trial but there still are protocols that must be followed.

Don't be afraid to say, "I don't know." It's better to admit that you don't know the answer to a question than to guess at it. For example, the questioner might ask, "What color jacket was the person wearing?" Don't say, "I think it was blue." It's better to say, "It was dark, but I don't know the exact color." 

If you're not sure you understand a question, don't take a stab at it. Ask the questioner to clarify.

Tell the Truth

You're under oath when you give a deposition, just as you would be if you were testifying at trial. But an important part of telling the truth is knowing when to quit.

Yes, you want to tell the "whole truth" but do that then stop. Don't volunteer information. Wait for the next question. If you're asked if you were with someone at a specific place and time, answer that question with a simple yes or no. Don't go on to discuss what you talked about or explain why you weren't with the person.

Be consistent. You might be asked different variations of the same question multiple times. The opposing attorney might be trying to trip you up and catch you in an inconsistency. Yes, they can be tricky, but it's perfectly legal.

As Mark Twain said, "If you tell the truth, you won't have to remember anything." 

Take Your Time

It might be tempting to answer quickly so you can get it over with but think about your responses before you speak. If you're given documents or photos to look at, do so carefully before you respond. Some business documents such as financial statements can be lengthy and complicated. Take your time with them and don't let anyone rush you.

After the Deposition

Giving a deposition might not be the end of your responsibilities. You still can be called as a witness at trial for the prosecution or defense. Be sure you give the same answers as in your deposition unless you remembered something new or something has changed.

Article Sources

  1. Cornell Legal Information Institute. "Deposition." Accessed Aug. 17, 2020.

  2. New York State Bar Association. "6. Fundamentals of Depositions." Page 346. Accessed Aug. 17, 2020.