Tips for Giving a Deposition
It's not as challenging as you might think
You've received a subpoena telling you that you must give a deposition in a lawsuit. If the thought of giving a deposition panics you, you're not alone. Now what?
The whole process isn't quite as intimidating as it sounds if you keep a few rules in mind but be sure to let someone in charge know about it if you're going to be representing your employer.
What Is a Deposition?
Depositions are used to gather evidence and information prior to a trial. They're fact-finding missions similar to testifying in court. In both cases, you must be sworn in and promise to tell "the truth, the whole truth, and nothing but the truth."
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 and you're obligated to answer.
Why Would You Have to Give a Deposition?
Depositions are an integral part of the discovery process of a lawsuit. Both sides to the case are legally bound to share and divulge the information they possess. Both the defense and the prosecution—the plaintiff in a civil case—have a right to know in advance what all witnesses will say at trial. This allows them to prepare their cases.
What Happens in a Deposition?
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 can all 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. With the judge's permission, the jurors can view or listen to the deposition instead. Your deposition answers will be recorded by a transcriber or a recording for this purpose and to create a file record of the information you possess for all attorneys involved.
Do You Need an Attorney for a Deposition?
You're 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 litigants. This means you're a party to the case so you have a personal stake in its outcome. But 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.
If counsel 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 issues that you're worried about exposing. Having an attorney is a good idea in this case as well. You can discuss questions with her before you answer, or your attorney can attempt to stop a question from being asked although this doesn't always work.
Some Tips for Dealing With the Process—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. 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.
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 particularly definitive 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 are still 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 tell 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 all this 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.
A Deposition Isn't Always the End
Giving a deposition might not be the end of your responsibilities. You can still 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.