How to Prepare for Your Deposition
1) Know what a deposition is and its role in your case.
Depositions are simply oral question and answer sessions, under oath. The person taking the deposition gets to ask questions of you and you get to answer them. You do not get to ask questions of the attorney on the other side nor do you want to.
The oath you take at the onset of the deposition is the same one as given in a court of law and subjects you to the same penalty of perjury as though giving testimony in court.
There are usually two main objectives that lawyers accomplish during a deposition,
a) have you commit to a version of events on the record (ie. the written transcript of the proceeding) and b) obtain information.
Its important to keep these two goal in mind, because the deposition process is only for the benefit of the side taking your testimony. It is never intended for your good, unless your attorney is taking your deposition (which in 40 years in practice, I have yet to see happen.)
2) Rules of the road
Like much in life there are important rules to follow when giving testimony at a deposition, such as:
a) Make sure you allow the person asking questions of you to fully and completely ask their question before you answer. Remember the last few words of a question can completely change the meaning of the question. You don’t want to answer a question that was never intended to be asked of you.
b) Make sure that if you don’t understand a question or did not fully hear a question, you ask for it to be asked again and again if necessary, until you have both understood and heard the question. If you answer the question it will be assumed that you both heard and understood the question. Sometimes people don’t want to admit that they have a hearing problem, or that they did not understand a question or did not understand the meaning of a word or term that the attorney used in the question. Don’t let simple embarrassment put you in the position of hurting your own case. At the same time, don’t assume that if a question is asked of you that you don’t fully understand or did not fully hear, your attorney will ask for it to be asked another way or repeated. He is not a mind reader and only knows what he understands or hears, not what YOU understood or heard.
c) Court reporters use a steno machine to take down what people say during the deposition using a kind of shorthand. Its sort of like a typewriter, but with fewer keys. Unlike an electronic recording device they can not take down two people speaking at the same time. Its important that two people not speak at the same time during the deposition, take turns. Likewise the court reporter can not take down answers that are not in words. Sounds and gesture can not be interpreted into words (is that nod a yes or a no?) So give answers vocally in words.
d) You are obligated to give your best recollection, but not to guess. If you don’t know the answer to a question the answer is “I don’t know.” If you can’t recall, say “I can’t recall.” Remember, I don’t know and I can’t recall are two different answers and have different meanings. One says I never knew and other says I know at one time but not now.
e) In addition to your best recollection, you are also obligated to give estimates as to those things capable of being estimated, such as time, distance, weights and measures. Estimates are based upon some knowledge of what you are estimating, such as seeing an object and approximating its size. But you can not estimate the size of something you never saw. For example, in rear end auto accidents, someone is asked the speed of the car that struck them. But if you were facing forward, you did not see the car and therefore can not estimate its speed. On the other hand if you were looking in your rear view mirror because you heard screeching brakes, you might be able to estimate the cars speed.
f) Finally, if you want you can ask for a break at any time, except when a question is pending. If you have any concerns during the session, ask for a break to speak with your attorney, Better safe than sorry.
3) How should you approach your deposition?
a) A good part of your deposition is the gathering of information you have, that the other side wants. You should keep in mind that you are being asked to give something of value (information has a lot of value) in return for , . .. . nothing. I always tell clients that in return for nothing you should give up as little valuable information in return. Therefore, keep answers as short and to the point as possible. This is a situation of less being more!
b) Answers should never go beyond the scope of the question. Sometimes clients think they know what is going to be asked and decide to speed up the process by giving the answer before the question is even asked. That is just wrong. That question might very well never be asked and you just gave away some valuable information, for free.
c) Answer yes no questions with a yes or no. Never explain or justify your answer, just give it. It up to opposing counsel to probe further, its not up to you to help.
d) Remember, you are sworn to tell the truth, but there can be more than one answer to question that is truthful. You job is to pick a truthful answer to the question that is the most benefit to your case. Self serving answers are okay, this is after all an adversarial process. The other side wants answers that can harm your case, you want to give answers that support your case.
e) Never give an answer because you think something might have or could have happened, but you are really sure. Only testify as to what you can actually remember and what you actually know.
f) Important thing to keep in mind. Every question at a deposition is asked for a reason. There are no frivolous questions. Your job, before you answer a question is to think, why is this being asked of me, how does it fit into my case. That process only takes a few seconds, but it will make a world of difference when you give your answer. You should have a basic understanding of your case and the basis of the others sides position regarding the law and the facts as it effects your contentions.
g) Never tune out during the deposition. After a short period of time, you will find that the process is boring. Depositions can last for hours and are not very exciting. But you must stay alert. When you disconnect from the process is when you can give up answer that is harmful to your own case. It will usually take some effort, but your case will suffer if you do not put in the work.
This general approach will provide you with the tools to give a good deposition. Your attorney will go over the basic areas that will be covered and some specific trouble areas that can be anticipated. Try not to memorize specific answers as much as a general a response.
Just remember, a deposition is survivable and you will walk out at the end in one piece. Good luck.