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PREPARING FOR YOUR DEPOSITION

By California attorney, Matthew B. Tozer Esq.

 

Below explains what a deposition is and what the general ground rules are:


1.    What is a deposition? A deposition is a litigation discovery method. Practically speaking, a deposition is a question and answer session.  The opposing attorney or attorneys ask you questions, and you answer them. 

However a deposition is more formal.  Before the deposition starts, the Court Reporter gives you an oath.  During the oath, you swear and promise, under penalty of perjury, to testify truthfully.  Further, the Court Reporter records, word-for-word, everything that everybody says.  Also, nowadays, depositions are frequently videotaped.


2.    Ground Rules:

    Abide by this one "golden rule," even if you forget all the rest:

    “Give the shortest possible complete and truthful answer.”


A.   Have a neutral mindset: At your deposition, don’t think of yourself as a person who must prove or defend your side of the case.  That mind set will cause you, consciously or unconsciously to act or speak “defensively.”  Defensive witnesses do not make good witnesses. 

Rather, have a neutral mindset.  Think of yourself as an independent witness.  Think of yourself as a neutral eye witness.  Just honestly tell what you know and remember.  This neutral mind set will help you testify in a credible manner.

Also, do not fold your arms in front of your chest defensively.


B.   Hear and understand before answering: Make sure you both hear and understand each question before you answer it.  If you do not hear the question, ask that the question be repeated.  Likewise, if you do not understand a question, ask the attorney to rephrase it.  If you answer a question, it is presumed that you both heard and understood the question.  Frequently, attorneys do not ask all questions in an understandable manner.  Therefore it is perfectly expected that you will ask for clarification at times.

 

C.   Don’t talk when the attorney is talking:  Wait until the attorney completes the question before you answer it.  The reason for this is to assure that the Court Reporter can make a clear record.  The Court Reporter cannot take down what two people are saying at the same time.

 

D.   Think and pause before you speak.  After the lawyer asks the question, think and pause before answering.  Do not blurt out an answer.  There are several reasons for this. 

First, if you have an attorney present with you, it will give your attorney an opportunity to object to a question. 

Second, you will be controlling the pace of the deposition, not the attorney.  This will prevent “race horse” attorneys from throwing you off balance by causing you to answer questions more quickly than you would like to. 

Third, by pausing and thinking, you will likely answer the question more accurately.


E.   Tell the Truth!  The most important rule is to tell the truth.  By telling the truth, I mean, not only refraining from lying, but also to answer the question as accurately as your knowledge and memory will allow you to. 

Therefore, do not exaggerate or understate any testimony.   Rather answer as accurately as you can.  The most accurate answer may, at times, be “I don’t know” or “I don’t remember.”  It’s not like taking a test at school whereby if you do not know the answer, you get a lower grade.  In this case, if you don’t know, then saying “I don’t know” is the correct answer. 

 

F.    If you don’t know, say so:  Tell what you know and remember.  If you don’t know, say “I don’t know.”  If you don’t remember, say, “I don’t remember.”  If you partially know or partially remember something, tell what (and what not) you know or remember.

 

G.   Don’t volunteer information.  If the attorney does not ask you something, don’t tell about it.  Answer the question concisely.  Yet, answer the question completely. 

If you volunteer information, you may volunteer something that is detrimental to your case, even if you think it’s helpful.  Further, whatever information you provide, that may lead to further questions and may cause your deposition to take a lot longer than it otherwise would.  Lastly, if you volunteer, you are helping the other side prepare for their case.

 

H.   Don’t guess: For instance, if you have an automobile accident case, you will be asked questions about time, speed, and distances in relation to the collision.  Don’t guess at any questions.  However, you may estimate. 

For example, if I were to ask you what the size, shape and color of my table at my home, you would not know because you’ve never been in my home.  On the other hand, if I were to ask you what the color, size and shape of a certain table in your home is, you would be able to tell me, even if you were not at your home, because you’ve seen it before.  That example is one way to distinguish between a guess and an estimate. 

 

I.      Feel free to take breaks:  If you need a rest break, several breaks, or a break even to privately confer with your attorney before answering a question, you may do so. 

As a matter of fact, even if you are a “pro-per” party that is not represented by counsel at the deposition, you may be able to arrange for a retained attorney to be available by telephone to advise you regarding any questions you may have. 

If you have an attorney present with you at the deposition, you can still take a break to confer privately with him before you respond to the particular question.

 

J.    Help the court reporter.  Speak loudly.   Speak clearly. 

Answer yes and no questions with “yes” or “no”.  Don’t say “uh-huh or “un-uh”.  As you can see, they are difficult to read, and the Court Reporter may misunderstand what you are saying.  However, if you do inadvertently or accidentally say “uh-huh” or “un-uh”, an attorney may ask you to clarify what you said, not to embarrass you, but in order to make a clear record.  

You can only answer in words.  Hand gestures or head nods will not suffice because the Court Reporter can only take down words, not symbolic gestures.

 

K.   Take a break before you show anger: If you feel angry or experience some other negative emotion, take a break immediately before manifesting the negative emotion.    Then you can privately talk your attorney about how you feel.  If you show negative emotions during your deposition, the opposing side will view you as less credible and may make it more difficult to settle your case. 

 

Summary: Lastly, remember the most important rule is simply to tell the truth.  If the only advice you follow is to tell the truth and not volunteer information, you will very likely give a very good deposition no matter what you said.  

 

What happens after the deposition? After the deposition is completed, a transcript will be prepared documenting all of the words that were spoken during the deposition.  You will have an opportunity to read the transcript.  You will have an opportunity to make changes to the transcript as to things that are not accurate.  However, if you make a material change to your deposition transcript, it could be commented on at trial, and that may create an inconsistency in your testimony.  An inconsistency in your testimony could reduce your credibility.  Therefore, it is important that you seek to give your best testimony at the time of the deposition.  Before you make a change to your deposition transcript, talk to your attorney to discuss the pros and cons of doing so.

 

Contact your lawyer before the deposition!  Sometimes a lawyer will advise a client to not review certain particular documents before their deposition.  There are strategic reasons for this.  However, you should confer with your lawyer within a week before your deposition, in order that he or she may prepare you for it, and to make sure that you have a solid knowledge of the facts and so forth so that you can go into the deposition with confidence.

 

Types of questions that will be asked:  The opposing attorney will probably ask whether you have taken any drugs or medication within forty-eight (48) hours or so of the deposition that may affect your ability to answer questions.  He or she will also likely ask what documents, if any, that you reviewed in preparation for your deposition.

For example, in a personal injury case, defense counsel will typically ask questions pertaining to: Your personal background (name, residence and work addresses, etc.); any prior injury claims; accident/incident facts; persons you have discussed incident or claim with; your injuries; present physical complaints; medical care; lifestyle impairment at home, work or play; loss of earnings; sensory abilities (for example, your eyesight, whether you have had your eyes checked within a certain period of time and so forth).

They may show you a particular document, report or photograph, and ask you questions about it.

In short, the types of questions asked will largely depend on the type of case and the facts of the case.

The law permits fairly wide open range of questioning … not only relevant questions, but inquires reasonably calculated to eventually lead to the discovery of relevant and admissible evidence.  But there are limits; for example, certain privacy issues, your discussions with your attorney, as well as badgering questions are not permitted and generally need not be answered.  Having a knowledgeable attorney present with you to make objections is preferable to you yourself having to be responsible for such issues (and other thorny matters) that may arise.


What do I wear at the deposition?  You do not need to dress formal (jacket, tie, dresses).  Normally, whatever you would wear to church or to a holiday dinner should suffice in most cases.  Dress modestly and conservatively.


Word of Encouragement: Remember, you are simply going to be truthfully answering just one question at a time, which is doable!

Copyright 2016.  All rights reserved.

Contact attorney Matthew B. Tozer for a free initial consultation.

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change.  This advice is based on California law.  No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own counsel prior to relying on any information on this website.

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