So you just received a notice of deposition or your attorney has told you that you may have to have your deposition taken during your case. What is a deposition? And, how do you prepare for a deposition?
The most important thing to remember about a deposition is that it is NOT the time in which you will try to prove your case, either to the Court or to the other side, and you should not think of it that way. A deposition is part of the discovery process, during which each side can require the other to answer questions. Your job is to answer questions truthfully and completely, but not try to add things or make your entire case. Before the trial, a transcript of the deposition will be prepared and if you say something at trial different than what you said in the deposition, the attorney may read the deposition transcript into evidence to say you changed your story.
Where is this “deposition,” who will be there and what do I wear?
Depositions are usually taken in a conference room in one of the attorney’s offices. Sometimes they take place in a conference room in a court reporter’s office, or very rarely, at the courthouse.
The people who definitely should be at a deposition, other than you, are (1) your attorney (if you have one), the other side’s attorney, and (3) a court reporter, who will be recording and transcribing the testimony.
The parties to the case have a right to be at the deposition, so it is possible that they will be there. If the deposition notice said that the deposition will be videotaped, there will probably be a camera operator. The judge is almost never at a deposition.
As far as what to wear, it depends partly on whether the deposition is videotaped, but you should generally be comfortable and professional.
Do not bring any documents or records to the deposition, as you may be asked what you brought. In fact, you should think about leaving behind any devices like cell phones, since the attorney may ask you to look at contacts, your past calendar, etc.
What to look out for
You shouldn’t be panicked about your deposition, but you should be prepared. Depending on the attorney, it is possible that they will try to rattle or confuse you.
The most important thing to remember about your deposition is to answer the questions truthfully and completely, but ONLY answer the question that was asked. If the question is “what time did you arrive?” answer with a time – don’t give reasons for what you did unless you were asked to do so.
Some attorneys try to rattle the deponent by drawing the deponent into a pattern of answering questions rapidly. Don’t get sucked into this. Establish a pace that gives you time to think about each question and the answer. Other times, attorneys will ask questions that are not understandable or that assume false facts, “when did you stop beating your wife?” You can always ask the opposing attorney to rephrase a question if you don’t understand it or if it is saying something not true.
Another trick some attorneys use is to ask the same thing a different way later in the deposition, especially if you answered well the first time. They are hoping you give a different answer or forget some of the things you said before. One good way to handle this is to say “I don’t have anything to add to what I said about that before.”
Another thing to remember is that at trial, you will have access to all of the relevant documents and records, but in the deposition the attorney may try to quiz you on details without letting you look at the documents. A good thing to say when that happens is “I think there is a document here that would help me answer that.”
Remember you can ask for a break at any time in the deposition as long as a question is not pending, if you need a break or to talk to your attorney.
What is my lawyer doing all this time?
Your lawyer can not tell you how to answer questions. However, your attorney can consult with you in breaks between questions. Also your attorney can make a number of objections. Usually you are still required to answer if your lawyer has made an objection (unless there is an “instruction not to answer”) but you should still listen to the attorney’s objections to consider what the attorney might be thinking.
If the attorney says “objection to form,” that means the attorney thinks there is something wrong with the question, either because it is confusing or because it assumes false information. If this objection is made think about the question and whether you should ask for it to be rephrased. If the attorney says “objection lack of foundation,” it means the attorney thinks you might have been asked something you wouldn’t’ know about. Again, think about the question and whether this is something that is actually within your knowledge. If the attorney says “objection asked an answered,” it means the attorney thinks you already answered this question. Think about giving the “I don’t have anything to add” response.
After the deposition
After the deposition the court reporter will prepare a transcript. You will probably have an opportunity to read the deposition and correct any transcription errors. You are not allowed to change your testimony, but you can make corrections if you think you weren’t correctly recorded at the deposition.
Talk it through first
Before the deposition, speak with your attorney about the issues raised in this article, or if you don’t have any attorney feel free to give us a call with any questions about depositions.
To watch our video podcast on preparing for a deposition, click here. Be sure to schedule your appointment to be prepared for your deposition.
Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.
Ventola Law serves the Denver Metro area including Arvada, Aurora, Boulder, Brighton, Commerce City, Castle Rock, Golden, Lakewood, Littleton and Arapahoe, Adams, Douglas and Jefferson Counties.