If you are a party to a lawsuit the odds are at some point your deposition will be taken. A deposition involves answering questions from an attorney while a court reporter records your answers. Depositions are taken under oath which means they have the same legal affect as testimony at trial. For a witness who has never been deposed before the process can be very intimidating especially since the odds are you have a vested interest in the outcome of the litigation if you are being deposed.
The following tips are what I consider to be the most important things for a witness preparing for deposition:
• You should always have a meeting with your attorney prior to deposition. You should discuss the anticipated subjects of the deposition and highlight the primary concepts and issues in the case. During deposition you may be asked whether you met with your lawyer prior to deposition. This question is permitted and you should say “yes” because you are allowed to speak with your attorney about the deposition. However you cannot be asked what you discussed with your attorney because that is protected by attorney-client privilege.
• After preparation, the most important tip is to always tell the truth. Depositions are sworn testimony which may be used at trial for impeachment purposes if you provide misleading or inconsistent testimony.
• You should listen carefully to every word in the question. The lawyer has the right to choose the wording of his or her questions. However, if the lawyer misstates something it is not your job to correct the attorney or answer the correct question. Your job is solely to truthfully answer the question that was asked.
• Always wait until the question is finished before you begin your response. You should also always give your attorney a moment to object to an improper question before beginning your response. However, in most instances you will be asked to answer the question even if your attorney objects. You should always wait instruction from your attorney before responding.
• If you don’t understand a question you should ask the attorney to rephrase the question. You should never state “did you mean 1 or 2” because you may inadvertently open another line of questions which the attorney did not have in mind. You should simply ask the attorney to rephrase the question because you do not understand it.
• The appropriate response to most questions should be “yes” or “no”. If this short answer is clearly not appropriate you may give a brief explanation of your answer. In this case, you should choose the words in your answer very carefully and try to avoid terms like “always” or “never” because those absolutes are rare.
• If you refer to a document or notes to answer a question, the attorney has the right to view and mark the document as an exhibit to the deposition. Therefore, if you think you cannot a question without looking at your records, the appropriate response should be that you do not recall. You have the right to look at your records after the deposition and have the answer at a later date.
• If the attorney asks you a question about a specific document you should not answer the question unless the attorney hands you the document identified in the question. You should never assume you know what document the attorney is asking about.
• Finally, it is permitted and sometimes advisable to ask for a break. Some depositions can take several hours and you should feel free to ask for a breaks if you are tired, hungry, or need to use the restroom. Breaks can also be used when you feel yourself becoming upset about the way the deposition is going.