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Guidelines for Giving Your Deposition

What Is a Deposition?

A deposition is pre-trial oral testimony taken under oath. In a deposition, the opposing attorney (counsel) will ask you various questions, and those questions and your answers will be recorded by an official court reporter. There is little difference between testimony at a deposition and testimony in the courtroom, except that there is no judge presiding during a deposition. What this means is that certain matters – whether a question or answer will be admissible at trial – will be decided by the judge later on.

Purpose of a Deposition

Depositions are extremely useful to opposing counsel.  In a deposition, the opposing counsel will want to find out what you know regarding the issues in your lawsuit so that they can prepare for your testimony in advance of trial. The testimony you give in a deposition may be read at trial, so opposing counsel hopes to catch you in a lie or omission, because, if they were to do so, they could claim at trial that you are not a truthful person. Having established your dishonest character, they could then argue that your testimony should not be accepted as evidence of any of the important questions at trial.  Remember, opposing counsel has every right to take your deposition for these purposes.

Your attorney may ask questions of you during the deposition, but typically your attorney will only ask questions of you in order to clarify a confusing answer. Like opposing counsel, your attorney may schedule and take depositions to help build your case. If there are some issues about your case that you consider worrisome, those matters should be discussed with your attorney before the start of the deposition.

Suggestions for Preparation

The following are suggestions to help you prepare to give you deposition:

  1. Always tell the truth: Failure to tell the truth in a deposition constitutes perjury, which is a felony. It can also damage your case if the truth comes out at trial.
  2. Listen to the question: Do not answer any question unless you hear it clearly and completely. You may ask the attorney or the court reporter to repeat a question.
  3. Understand the question before answering: Do not answer any question unless you understand it fully.  You may ask the attorney to explain or rephrase the question until you do understand it.
  4. Pause after each question: This gives you an opportunity to think about the question and give an appropriate response. It also allows your attorney the time to make an objection to the question if one is appropriate.
  5. Don't guess: If you do not know the answer to a question, you should say that you do not know.
  6. You have a right to confer with your lawyer: At any time during the deposition, you will have the right to speak with your attorney privately regarding the question and your answer. Do not hesitate to exercise this right.
  7. Don't volunteer information: Do not give more information than is necessary to answer the question. Stop talking once you have answered the question.
  8. Don’t explain: Never attempt to explain or justify your answer. You are there to state what you know.  You are not expected to justify your knowledge of the facts. If you try to explain, the attorney may believe that he or she has reason to doubt the accuracy or authenticity of your testimony.
  9. Remain calm and polite: Do not lose your temper no matter how hard you are pressed. If you lose your temper, you may be playing into the other side's hands. Do not argue. Speak in the same tone and manner that you would speak to your own attorney. Your attorney will object to any inappropriate questions or actions by the other lawyer.
  10. Be aware of estimations: If you have to estimate distances or time in any of your answers, explicitly state that your response is an estimate.
  11. Be careful of quoting others: If you are testifying about a conversation you had in the past, make it clear whether you are paraphrasing comments, or whether you are directly quoting what was said.
  12. Don't prepare notes, documents or diaries: You cannot use any notes, diaries or any other documents to assist you during your deposition unless the document has been approved by your attorney prior to the deposition.
  13. Bring copies of requested documents: You may have been instructed to produce documents at your deposition. If so, you should bring three copies of the documents. One copy will be provided to opposing counsel, one copy kept by you, and one copy kept by your attorney. You should also bring the originals to prove the accuracy of the copies.
  14. Documents you shouldn't produce: Do not volunteer to supply any documents or information. If you are asked to supply documents or information, refer the opposing counsel to your attorney. Do not reach into your pocket for a social security card, driver’s license, or any other document, unless your attorney requests that you do so.
  15. Admit to your mistakes: If at anytime during the deposition you realize you have given an erroneous answer or you have misspoken, correct your mistake as soon as you recognize it. You should tell either opposing counsel or your own attorney about your mistake at the first opportunity.
  16. Don't always accept opposing counsel’s statements/questions: Do not let the opponent put words in your mouth. Pay particular attention to the question. Do not accept opposing counsel’s summary of your testimony unless it is completely accurate.
  17. You aren't expected to know all the details: If you do not know all the details, relax. Simply state what you do know and leave out the details.  Do not give an answer that requires you to consult records not available at the deposition or requiring you to consult your friends and associates for the answer.
  18. Don't ever reveal the content of your discussions with your attorney: If asked what you discussed with your attorney, do not respond.  Your discussions with your attorney are confidential and should not be revealed to the other side.
  19. No jokes: Never indulge in humor when responding to a deposition. Avoid wisecracks and obscenities. Your humor may not be recognizable in the transcript and may look crude or untruthful.
  20. Don't speak with opposing parties or counsel: After the deposition is over, do not chat with your opponents or their attorney. Do not let their friendly manner cause you to drop your guard or become chatty, as you may reveal something important to your case.
  21. Don't speculate: Do not form an answer based on estimations, guessing, predictions, feelings, and other musings that cannot be verified.

How you conduct yourself during your deposition can make or break you case. Be aware at all times that your deposition is being taken to provide your opponent with legal ammunition to use against you at trial.  Be cooperative, but always be mindful not to volunteer more information than you have to, and remember that you may consult your attorney at any time during your deposition.

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