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The Dummy's Guide to a Deposition

(This article originally appeared in Parking Today, March 2007. To see a PDF of how it looked in print, please click here.)

Your first experience in a law suit may be as a witness in a deposition.  Here is a general guide to the process and what you should be aware of. 

What is a Deposition?
A deposition is like going to the dentist but only longer.  Actually, it is an informal proceeding intended to preserve the out of court testimony of a witness and is typically used in court at the time of trial.  The deposition is usually held at an attorney’s office.  But don’t let this informality mislead you - depositions are vitally important to a lawsuit and the attorneys are deadly serious. 

The persons present are: (1) you, the witness; (2) a court reporter to administer an oath and record your testimony; (4) an interpreter if necessary; (4) lawyers for all the parties in the law suit; (5) the parties themselves or their representatives, who have a right to attend the deposition but seldom appear. 

The court reporter will record everything said during the deposition.  The record will be later typed (double space) and bound in booklet form that is typically referred to as a “transcript” or “deposition.”

The deposition process itself is quite simple.  The reporter will ask you to raise your right hand and take the standard witness oath.  The questioning begins with the lawyer who scheduled your deposition.  Each lawyer present will have an opportunity to ask you questions.  The process continues in an orderly fashion until the lawyers have no further questions to ask you.

The Purpose of a Deposition.
It is important for you to know what the lawyers are trying to do in a deposition if you want to understand what is going on.  Let’s assume you are an employee of the defendant and the plaintiff’s attorney is taking your deposition.  What is the plaintiff’s attorney looking for?

First, the objective of the plaintiff’s attorney will usually be to discover what you know concerning the matters involved in the case. In this respect, he is legitimately searching for evidence.

Second, he is looking for evidence favorable to plaintiff’s case.  For instance, in a personal injury case, he would like to have you admit facts that establish that your employer was negligent.

Third, plaintiff’s counsel may be looking for ways to discredit your testimony or to discredit the testimony of other defense witnesses through you.  Lawyers call this process “impeachment”. 

Fourth, he will attempt to learn what your employer’s defenses are to the lawsuit.  It is common for plaintiff’s lawyers to start off litigation on the basis of one claim and, upon discovering the defenses, to shift plaintiff’s claim to a wholly new and different theory. 
Fifth, in some cases a lawyer may take a deposition to simply preserve the testimony for trial or to lock you in on your testimony. 

How to Make the Process Work for You
Life would be simple if one could obtain justice by merely appearing in the courtroom and telling the truth.  The trouble is that your opponent’s attorney will use your deposition testimony to ridicule your story and contrive ways to suggest to the jury that you are not telling the truth. 

So here are some suggestions on how to make the deposition process work for you - rather than against you:

1:         Remember the Name of the Game
If you are the defendant or an employee, you can rest assured that plaintiff’s attorney’s purpose in taking your deposition will be to enhance the case against you or your employer.  The atmosphere in the deposition may be causal and friendly.  But beware, it’s still money that plaintiff’s attorney is after and he can afford to be charming.  So keep your guard up.

2:         Never Volunteer
The simplest rule is always the hardest to follow.  NEVER volunteer information.  The road to hell is paved with good intention.  More damage is done to a lawsuit by a ‘helpful’ witness than any other source.  If the answer can be answered with a “Yes” or “no,” do not volunteer more information.

For instance, if you are asked if you have a document or file, simply respond “Yes” or “No” rather than answering “No, Mr. Smith has the file” as you have guaranteed that Mr. Smith’s deposition will be taken soon.

3:         Make Sure You Understand the Question. 
Never answer a question unless you fully understand it and always wait until you hear the entire question.  There is an assumption that if you answered the question you understood it.  So if the question is long or complicated ask the court reporter to repeat it for you.  You also have a right to ask for a clarification if the question is unclear.

Occasionally a question may not make sense because the attorney asking the question does not understand the technical details of the subject matter.  Do not guess as to the meaning of his question but rather state that you do not understand it.  And do not help out the questioning attorney.  If he does not understand the subject matter well enough to phrase a proper question - do not educate him on the subject matter so he can ask intelligent questions.  By all means let him struggle and flounder. 

4:         Take Time to Think.
First, listen to the whole question.  Second, consider the question carefully.  Third, think through your answer.  And finally, state your answer concisely.  NEVER rush the process. 

Keep in mind that your written transcript will never reflect the fact that it took seconds or even minutes for you to formulate an answer.  In contrast, a rushed answer cannot be salvaged.

5:         Never Guess.
If you do not know the answer to a question, just say so.  “I don’t know” is a legitimate full and complete answer.  Let the lawyer then try to jog or refresh your recollection if the subject matter is worth the effort.

6.         Never Assume.
There will be times when you can’t remember important facts.  If this happens, do not be afraid to say that you can’t remember.  It is much more dangerous to testify based upon assumption rather than memory.  The last thing you want to do is create evidence that may be harmful to you or your employer’s case.

7.         Never Lose Your Temper.
Some lawyers intentionally try to push your buttons.  They know that an angry witness is a bad witness.  Be polite but firm and do not let the opposing attorney get the best of you.

8.         Always Read the Fine Print.
Documents (i.e. accident / incident reports, contracts, leases, insurance policies) are a common subject matter for questions in a deposition.  However, there are some rules you should follow before testifying about a document.  First, always read the entire document to refresh your recollection and to ensure you have the right document in mind.  And read it slowly and at a comfortable pace.  You can always ask for a break if you feel pressured. Never assume that what the opposing attorney represents to you about a document is true or an accurate representation of the intent or meaning of it. 

9.         Listen to Objections.
Lawyers occasionally object to questions in depositions (which are later ruled upon by a judge).  The witness is still expected to answer the question unless the attorney instructs him or her not to do so.  If your attorney objects to a question, you should listen very carefully to the objection because it will give you a clue as to his concern and you may be able to tailor your answer accordingly.  Your attorney will love you for it.

10.       The Theory of Relativity.
Just how precise should your answers be?  Well, there is no precise answer but as a general rule your answer should be as precise as the question. Again, if opposing counsel fails to ask the right question, do not provide information not requested. 

11.       Check Your Baggage.
Always ask your attorney in advance what documents you should bring to the deposition.  Chances are that he will suggest that you rely solely on your recollection of facts and leave all your documents at home.  The reason is because in most instances, opposing counsel has a right to inspect any documents you bring with you or reviewed to refresh your recollection.

12.       Never Assume Falsely.
Occasionally the opposing lawyer will have you assume certain facts and then ask you to formulate an opinion based upon the hypothetical he has described to you.  Be very careful in these situations as the hypothetical is usually designed to support a claim against you.  If the facts are unacceptable because they are based upon an impossible premise or contrary to known physical facts and scientific principles, then decline to answer the question on the basis that you cannot accept the premise as stated. 

13.       Be Consistent.
Some lawyers will ask the same question ten different ways.  The tactic of repetitive questions is typically used when the asking attorney does not like your initial answer so he tries to take another shot at it with a differently worded question.  Or the tactic is used to lock you in on an answer as it is hard to say that you didn’t understand the question when you answered the same question consistently nine other times.  Another motive for repetitive questions is to test the truthfulness of your recollection as it is difficult to keep facts straight if your answers are less than truthful.

Some people will tell you that they rather sit in a dentist chair than a witness chair.  But the truth of the fact is that most lawyers are afraid that some fast talking, smart answering, know it all witness is going to make fools of them - or worse, is going to blow their case out of the water.  Remember, the lawyer can only ask questions so if you know the answers and keep your cool, you are in control of the deposition process.

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