The following is a general guide our firm provides to clients who are preparing to have their deposition taken. Although it provides some general guidance and tips for being prepared for depositions, we also spend significant time with our clients to make sure they understand what to expect and are comfortable with the process.
If you are a plaintiff, defendant, or even just a witness in a civil lawsuit, there is a good chance that at some point you will have to submit to a deposition. Depositions are statements given by a person under oath for purposes of litigation. Unlike trial testimony, depositions are conducted out of court, usually with only the witness, attorneys, and a court reporter present. Because most of our clients have never given a deposition, and will never give one again, we have prepared this short guide to explain to you what a deposition is, what to expect, and what you can do to make sure your deposition testimony is clear, concise, and accurate.
The most important rule for depositions is to tell the truth. A person being deposed is under oath, and giving an untruthful answer may result in court sanctions or even criminal charges for perjury. Even if this doesn't occur, the opposing party will probably discovery an untruthful statement and use it against the person being deposed later in the case.
What is a deposition?
A deposition is testimony given under oath for purposes of a lawsuit or other legal proceeding. Although depositions are sometimes involved in criminal trials, this article focuses on civil lawsuits. These include commercial and business disputes, personal injury and wrongful death claims, workers' compensation claims, property disputes, and divorce.
Depositions are usually taken in a lawyer's office, but can sometimes be done at a courthouse, medical office, or in a business's conference room. Typically, you will be at a conference room table, with the court reporter on one end, you and your attorney on one side of the table, and the opposing attorney, and possibly the opposing party, directly opposite on the other side of the table. Others may be allowed in the room if agreed to by the parties.
Depositions can last from just a few minutes, if the attorneys are interested in only a few facts, to multiple days in cases where the facts are particularly complex. Most depositions for personal injury cases take between one and a half and three hours, but may last longer depending on the nature of the injury. Depositions in commercial or business disputes are less predictable, since some witnesses may know only a few facts while another may be asked to comment on thousands of pages of documents, which could take multiple days. Under the Federal Rules of Civil Procedure, depositions are limited to one day of seven hours, although the parties can, and often do, obtain permission from the court for additional time where necessary. Many states have similar limitations.
Regardless of where they are taken, depositions are official court proceedings and should be considered just as important as your testimony before a judge and jury at trial. Depositions can be, and often are, introduced at trial and read to the judge or jury. Therefore, it is important to be properly prepared for your deposition.
Why do I have to give one?
Depositions are most commonly taken during what is known as “discovery,” which is the period of a pending lawsuit prior to trial where each side has an opportunity to question opposing parties, witnesses, and to obtain other evidence that might be helpful or harmful at trial. Your deposition will most likely be taken by the opposing party's attorney if you are a party. Sometimes, your own attorney will follow up with questions if he or she felt any of your answers were unclear or incomplete, or if your attorney wants to add additional information to the deposition record. If you are a witness, the deposition may be taken by attorneys for both sides, although one side may take the lead in asking most of the questions.
In some circumstances, your deposition may be taken for evidence, rather than discovery purposes. This means that the testimony you give at the deposition will likely be read word-for-word to the jury at trial. This is usually done in cases where you would otherwise be expected to testify at trial but cannot, either because of your distance from the court, illness, or job requirements. These types of depositions are also often videotaped to provide a more realistic picture of your testimony to the jury. The evidence rules are somewhat different for these types of depositions, and so you should ask your attorney for specific advice if you are giving an evidentiary deposition.
Note that a “discovery” deposition does not stand in the place of your trial testimony. If your case makes it as far as trial, you will likely have to testify there as well. If you have given a deposition, one of the attorneys may bring out the transcript and ask you to confirm parts of it, or use inconsistent testimony between your trial testimony and the deposition testimony in an attempt to discredit you. For this reason, it is important that your testimony be accurate.
Do I really have to answer all these questions?
To a large extent, yes. An attorney taking a deposition for discovery purposes is entitled to ask you about any non-privileged information that is relevant to the case. Even if you cannot understand the possible relevance of a question, chances are that the attorney questioning you has a basis for asking the question, and therefore you are required to answer the question. This applies even if the question seeks information that is embarrassing to you, or information that you would prefer not be made public, subject to certain privileges that may be raised in appropriate cases.
There are, of course, some questions that are clearly outside the scope of proper questioning. For the most part, your attorney will object to these questions and, depending on the circumstances, you may not be required to answer. The first and easiest to deal with are objections to the form of a question. If the question is simply confusing, or asks multiple things in a single question, for example, your attorney will probably object. At that point, the attorney asking the question may rephrase the question, or may insist that you answer it as asked. If he does not rephrase the question, defer to your attorney, who will tell you whether you should or shouldn't answer. Of course, if you don't understand the question yourself, you should always seek clarification before answering, as discussed below.
A second type of inappropriate question involves privileged information. You may be asked about communications you had with your attorney, your doctor, or your spouse. Depending on your jurisdiction, some or all of these conversations may be privileged and not subject to questioning. If such a question comes up, always defer to your attorney.
Finally, a truly irrelevant question might be asked on occasion that could never lead to any relevant information. Such questions might be meant solely to embarrass or humiliate you (although, remember, questions are not improper just because they are embarrassing if they are otherwise relevant). If you were a witness to a car accident, a question about prior drug or alcohol abuse is probably not relevant and is objectionable. However, questions about criminal convictions very well may be proper, since they can be used at trial to attack your credibility under the rules of evidence in most jurisdictions.
Note that routine background questions such as your work, educational, and family background are normally allowed even though they are not usually directly relevant to the issue for which you are being deposed.
If you are concerned about any questions that might come up, it is crucial that you discuss these with your attorney prior to the deposition. In most cases these concerns can be dealt with, but in all cases it is far better for your attorney to know about any concerns you have beforehand rather than learning about them for the first time at the deposition.
How can I prepare myself for my upcoming deposition?
Your attorney should spend some time with you going over the facts of your case. While your attorney should not tell you what to say, he can show you evidence and other documents that reflect the facts and refresh your memory. It is important that the record be clear and accurate in order to best reflect your position. Our attorneys have taken and defended hundreds of depositions, and based on our experience we stress the following points to our clients while they are preparing for a deposition, each of which is discussed in further detail below:
- Know the facts
- Speak clearly, and explain everything verbally
- Understand the question completely before answering, and ask for clarification
- Only answer what's asked
- Don't talk over the questioning attorney, and pause at least 2-3 seconds before answering
- Don't assume a fact is true just because the questioning attorney mentions it
- Watch out for leading questions
- Don't guess or speculate
- Respect the opposing attorney
Know the facts – Before your deposition, set aside some time to consider the subject that you will be testifying about. If it is a personal injury, try to remember everything that occurred when you were injured or you witnessed an accident. If a car accident, was the traffic heavy or light? What time was it? Where had you been and where were you going? Often in the middle of a deposition, nervous witnesses can forget basic facts like this, but they are crucial in making sure the deposition is effective, for both sides. If the attorney taking your deposition cannot obtain the information he or she needs, it may be necessary for you to be deposed again, or for other witnesses to be identified. Therefore, to the best of your ability, make your best effort to remember the facts of the case and spend some time to make sure you are comfortable talking about them.
Speak clearly, and explain everything verbally – If a question is a yes or no question, make sure you respond with a clear “yes,” “no,” or, if appropriate, “maybe” or “sometimes.” Nodding or shaking your head cannot be recorded by the court reporter, and saying “uh huh” or something similar will be very unclear in the record. Also, if you are demonstrating something with your hands, or pointing out an injury you have sustained, make sure that you verbalize what you're doing at the same time, as the court reporter cannot record your movements.
Understand the question completely before answering, and ask for clarification – If you don't understand a question that you've been asked, do not hesitate to ask for clarification. Lawyers often pose complicated questions or use technical terminology that most people wouldn't understand. If you answer a question that you don't really understand, your answer is going to be in the record and you may not have a chance to explain later that you didn't understand it. Or you may be prohibited from explaining later that you didn't understand because you should have done that at the time of questioning.
The bottom line is that if you have any doubt whatsoever about the meaning of a question, or a word in a question, ask for clarification. And don't be embarrassed if the lawyer responds that it was a very straightforward question – it probably wasn't, so don't answer until you truly understand the question, even if it means that you ultimately cannot answer it at all.
Only answer what's asked – Although you should certainly answer every question honestly and to the best of your ability, you should not volunteer information or be overly emotional and ramble on after the question has been answered in an attempt to convince the opposing attorney of your case.
It can be easy to answer more than is asked. For example, many people when asked “Do you know what time it is?” would respond by looking at their watch and telling the questioner the current time. This is the wrong answer. It was a yes or no question. Unless the questioner follows up further to ask the time, the answer should be simply yes or no.
Although this is a very simplistic example, many, if not most, deposition questions can be answered in either one word or a short sentence. Further explanation is usually neither necessary nor helpful.
Don't talk over the questioning attorney, and pause at least 2-3 seconds before answering – This is important for several reasons. First, it is extremely difficult for the court reporter to record what you and the attorney are saying if you talk over each other, and even if he or she manages to do so, it will result in a confusing transcript that is not helpful for either side. Even though you may be able to anticipate what the attorney is asking in many cases, wait until the question is complete.
Second, a brief pause before answering gives you time to make sure you understand the question completely, as discussed above, which is probably the most important thing to remember, other than making sure your testimony is accurate, when giving your deposition.
Finally, a brief pause will allow your attorney to comprehend the question and, if necessary, make an objection. Objections are usually very limited in depositions, as discussed above, but certain circumstances those objections can be waived if not made before you answer. If you start your answer before your own attorney has a chance to make that objection, you may be causing serious harm to the case if a valid objection has been waived.
Don't assume a fact is true just because the questioning attorney mentions it – If the attorney taking your deposition mentions some fact, don't automatically assume it is true. For example, if your case involves a car accident, and the attorney says “Were you aware that John Doe was drunk at the time of the accident?” do not assume this is true for the rest of the deposition. It may be that this was not true at all, or that there was insufficient evidence of this to be admissible at trial.
Watch out for leading questions – A leading question is one in which the attorney questioning you wants you to agree with what he's saying, and that's usually not in your best interest. For example, a defendant in a car accident case might be asked “Since you claim you had the green light, you just flew on through the intersection, right?” The attorney wants you to admit to “flying through” the intersection, which, while it might not have legal significance, may well make a jury think you were speeding, even if you simply wanted to emphasize you had no reason to slow down because you had the right-of-way. So pay careful attention to what the attorney is asking, and don't automatically agree to his or her statement.
Don't guess or speculate – If you don't know the answer to a question, don't guess or speculate. If you cannot remember something, you cannot be forced to provide an answer. Even if the questioning attorney ridicules you for not knowing an answer, you should always stand your ground rather than make a guess. If you make a guess and it turns out to be harmful to your case, you may have caused irreparable harm to your cause.
Keep in mind that you can't ask your attorney, or anyone else in the room, for an answer if you don't know it. Simply say you don't know it. The purpose of your deposition is to determine your own knowledge of the event or controversy; the attorneys almost certainly know each others' contentions regarding the case already.
Respect the opposing attorney – Although litigation is, by its very nature, an adversarial process, it is unlikely that the attorney taking your deposition will try to trick you into answering wrongly, or argue with you, or try to intimidate you. While the deposition may be an intensely personal activity for you, the attorney has likely taken hundreds, if not thousands, of depositions in cases similar to yours, and it is highly unlikely that he holds any personal feelings against you. So be cordial and polite, and do not try to be evasive with your answers, since a good attorney can use a deposition of a combative, rude, or angry witness against the witness at trial. If a question is inappropriate, your attorney will object, but otherwise your job is simply to recite the facts as you know them to the best of your ability.
With that said, depositions can occasionally result in heated exchange, usually between the attorneys involved, but sometimes including the witness. No matter what happens, you should respect the attorney taking your deposition. If he does something inappropriate, it is your attorney's job to remedy the situation or, if necessary, suspend the deposition. Whatever you do, do not allow yourself to be drawn into an argument with the attorney; if you are uncomfortable with the situation, simply ask to take a break.