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? How do you prepare for a deposition?
1. Tell the Truth
First, 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.
2. Avoid Saying More Than Asked
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. 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.
3. Ask for Documents
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.”
4. Be Professional
Remember, everything is being taken down by the court reporter or videographer. You want to make sure you are answering the questions completely. As far as what to wear, it depends partly on whether the deposition is videotaped, but you should generally be comfortable and professional.
5. Avoid Fast-Paced Questioning
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 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.”
6. Listen to Your Attorney’s Objections
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.
7. Ask for Breaks
You can ask for a break at any time in the deposition as long as a question is not pending.
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.
Sam Ventola has been in practice for over 30 years. When not practicing law, he enjoys playing video games with his daughters and spending time with his grandson, Jack.
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.