How can I prepare for my deposition?
WHAT IS A DEPOSITION?
A deposition is the taking of testimony by a question and answer method, under oath, before a certified court reporter. You will be asked questions by the opposing attorney, and the questions and your answers will be recorded by an official court reporter. Although there will be no judge present, there is little difference between testimony at a deposition and testimony in a courtroom.
DIFFERENT KINDS OF DEPOSITIONS
There are different purposes for depositions, and you should speak to your attorney to be sure you know why the deposition is being taken. Different types of depositions require different preparation.
DISCOVERY DEPOSITIONS OF A PARTY TO THE CASE.
This is a deposition which is taken by an attorney to discover what a witness is going to say at trial or to find out what a particular witness knows about the case. If the opposing attorney has scheduled your deposition, it is most likely because he is going to explore your knowledge of the case. The questions are broad and wide ranging, limited only by whether or not they are likely to lead to evidence which might be admitted to trial, or by claim of privilege. This is the type of deposition which is addressed in this blog.
DISCOVERY DEPOSITIONS OF A WITNESS WHO IS NOT A PARTY.
If you are not a party to the litigation, you most likely have no stake in the deposition that is being taken. If that is the case, the most important thing, as in any deposition or testimony, is to be honest and accurate in your responses. You may find the comments in the rest of this blog enlightening, but you should not be concerned about whether your testimony hurts or helps one side or the other. Your job is to tell the truth.
DEPOSITIONS TO PRESERVE TESTIMONY.
This is a deposition taken by an attorney who wishes to preserve the witnesses testimony for trial. At trial, instead of calling the witness into the courtroom for testimony, the deposition testimony will be presented to the jury. Many times, this type of deposition is preserved by videotape. It is most commonly used in Washington State to present the testimony of expert witnesses or treating physicians. It is useful because it is difficult to schedule testimony at a precise time and date due to court congestion, and witnesses with expert credentials or physician witnesses charge for their time. They do not like to be inconvenienced by sitting around in a court room for hours or days at a time. Preparing for this kind of deposition will be the subject of a different blog.
PURPOSES OF A DEPOSITION:
Simply stated, lawyers take depositions to discover what a person’s testimony will be and to preserve testimony for use in trial. It is important for you to know what the lawyers are trying to do in a deposition if you want to understand what is going on. The opposing side is taking your deposition for several reasons:
First, the opposing attorney wants to discover what you know concerning the matters involved in the case. In this respect, he is legitimately searching for evidence.
Second, he is looking for evidence favorable to his client’s case.
Third, the opposing attorney wants to commit you to statements under oath. If you have testified under oath in deposition to a certain fact, then you are committed to that point. If you attempt to change your testimony later, the opposing lawyer can read that portion of the deposition to the jury during trial.
Fourth, the opposing attorney may be looking for ways to discredit your testimony or to discredit the testimony of other witnesses through you. He may try to get you to make conflicting statements, or statements which conflict with the testimony of other witnesses in the case. Minor conflicts are inevitable in every case. However, major conflicts in the testimony of witnesses can seriously affect a case.
Fifth, expect opposing counsel to ask you about your doctors and “what did your doctors do for you?” If you feel a doctor or other medical provider did “nothing” for you, please let me know ahead of time, and we will consider not claiming compensation for that treatment. Please keep in mind that we have to prove that your treatment was “reasonable and necessary.”
These are the legitimate objectives of the deposition. It is not a legitimate purpose of a deposition to harass or embarrass you or to increase expense. Although you may be slightly inconvenienced by your deposition, very few depositions are taken for improper purposes. Before your deposition is taken, you and I will meet to thoroughly discuss your knowledge of the facts in the case and the subjects on which you may expect to be examined.
YOUR OBLIGATION AS A WITNESS:
Your duty as a witness is to be accurate and tell the truth.
IDEAS TO REMEMBER AT YOUR DEPOSITION:
It would be much easier if people could obtain justice by merely appearing in a courtroom and telling the truth. Unfortunately, the opposing party may tell a different story. What’s more, he has a lawyer who may attempt to convince the judge and the jury that his story is true and that your testimony is either false or erroneous. How do you deal with an opposing attorney? Please consider the following ideas which may reduce the chance that he will take advantage of you or treat you unfairly. Please read them over and discuss them with me before your deposition.
Idea No. 1: Remember the purpose of the deposition.
As the plaintiff you can assume that the opposing attorney’s purpose in taking your deposition will be to discredit your case against his client.
The atmosphere in the deposition room may be casual and even friendly, and the opposing attorney may be charming and personable, but do not forget the purpose of the deposition which is to get favorable testimony for the opposing party’s case.
Idea No. 2: Never volunteer.
The most important advice I can give you before your deposition is to never volunteer information. More damage is done to a lawsuit by a “helpful” witness than any other source.
This is an extremely hard rule for any witness to learn. Most of us want to be helpful. Nevertheless, if the question can be answered with a simple “yes” or “no,” do not volunteer a further answer unless the simple yes or no leaves your testimony in an unfavorable light. If the opposing attorney asks you for an example, do not volunteer a second or third example. If the opposing attorney does not understand the subject well enough to phrase his questions, you are not required to take it upon yourself to explain the subject matter to permit him to ask intelligent questions. Do not volunteer information of any kind.
It is by no means suggested that you should hide any information. If the question calls for fact X, then state fact X fully and concisely. However, do not volunteer facts Y and Z as a part of your answer. Let the lawyer ask his own questions; that is his job.
Idea No. 3: Make sure you understand the question.
Never answer a question unless you fully understand it. Make sure that you hear the entire question. Some lawyers have a habit of dropping their voices toward the end of a sentence. Sometimes noises outside of the deposition room interfere with your ability to hear the question. If this happens, insist that the full question be repeated to you.
If the question is long and complicated, you may ask the attorney or court reporter to repeat it for you. A question may not make sense. Lawyers have been known to ask a great number of unintelligible questions. If you do not understand the question, you should immediately say so. The attorney will then rephrase his question. If he restates the question and it is still unclear, you may again state that you do not understand the question. Indeed, you should continue this process until he has stated the question in such terms as to make it clear.
This is not to imply that you should be overly technical or picky about the question. If the question is understandable, then answer it. However, if the question is ambiguous, confusing or unintelligible, then you should insist that the question be restated in terms you can understand.
Idea No. 4: Take time to think.
Listen to the whole question. Never answer before the lawyer finishes his question; the last word of his question may change its whole meaning.
Consider the question carefully.
Think through your answer. Take as much time as you need to phrase your answer.
State your answer concisely. Never rush this process. Remember that your answers are more important than finishing by noon or getting home before rush hour.
Idea No. 5: Never guess.
If you do not know the answer to a question, say so. “I don’t know” is a full and complete answer. You would be amazed at the number of people who refuse to admit that they do not know everything.
Obviously, if you know the answer to the question, you must answer it. But if you do not know the answer, then rest assured that it is a sign of wisdom to admit simply that you do not know.
You may be called upon to give reasonable estimates concerning information within your knowledge. For instance, you might be a reasonable judge of the length of a table or the height of the ceiling in the deposition room. If so, it is proper to answer with the qualification that your answer is an estimate.
If you do not know the size of an object or if you have difficulty estimating distances, then you may state that you have no estimate or that you simply do not know. Opposing counsel is not entitled to require you to guess and you should decline to guess. Occasionally, attorneys will say “I don’t want you to guess; I just want your best estimate.” If your best estimate is still a guess, then state that you have no judgment beyond a guess.
Do not be intimidated into thinking that you should know the answer to a question or that you might appear foolish for not knowing. Don’t let the questioner play on your pride.
Idea No. 6: Remember – sometimes you can’t remember.
There will be times that you can’t remember important facts. All of us have this shortcoming; many persons are unable to recall the dates of their children’s birthdays or addresses or their childhood residences. If this happens, do not be afraid to say, “I can’t remember.”
It is extremely dangerous for a witness to testify from assumption rather than from memory. There is no rule which says you have to remember if you don’t. On the other hand, if you do remember, you are obliged to testify. Keep in mind that a witness who pretends not to remember important facts in deposition may be discredited if he later tries to convince a jury that he can remember the facts at trial.
Idea No. 7: Be patient.
A common mistake is to assume that if you quickly spit out all of the facts, the deposition will end sooner and you can get back to work or matters that seem more important. This assumption almost always fails, because an impatient witness has been so helpful that the lawyer is encouraged to continue indefinitely. After all, why should the lawyer stop if he is getting the information he wants? Moreover, the witness has suggested so many avenues of inquiry that the lawyer can spend hours asking for details. Don’t make the “Let’s get it over with” mistake.
Occasionally, some lawyers intentionally drag out a deposition to wear the witness down mentally and physically. Recognize this tactic for what it is and do not let impatience interfere with your testimony. Further, if you are getting tired and feel that your testimony may be affected, call for a break and talk it over with me.
Idea No. 8: Be polite but firm.
A witness seldom impresses a judge or a jury with flippant, sarcastic or cute answers. Coarse and vulgar language has no place in a deposition or courtroom. However, good manners do not require you to back away from the truth. Don’t let the opposing attorney talk you out of the facts or bully you away from the truth. If you believe in your testimony, then stick to your guns. Remain polite but firm in your testimony.
Idea No. 9: Speak clearly.
Remember that the court reporter must write your answers. Therefore, you should avoid non-verbal answers. In other words, say “yes” or “no” instead of nodding or shaking your head. If you point to an object or a place or if you hold up your hands to indicate a distance, you will find that most experienced trial attorneys follow with a statement something like, “Let the record reflect that the witness is indicating approximately three feet.”
While we are on the subject, I also urge you to answer with a clear yes or no. Avoid “uh-huh,” “huh-huh,” “yeah,” “yep,” “nah” and other similar substitutes. The trouble is that the substitutes can be misunderstood by the court reporter with the result that your answer might be recorded as just the opposite of what you intended.
Idea No. 10: Correct your answer.
You may discover during the deposition that you have given an incorrect or inaccurate answer. You have a right to correct your prior answer at any time. Don’t be afraid to correct your prior answer. It is far better to correct the answer before the deposition is over than to explain an incorrect answer from the witness stand in the courtroom perhaps months or years later.
Idea No. 11: Listen to the objections.
Lawyers occasionally object to questions during a deposition. If I object, stop and wait for me to finish. The court reporter will note the objection for later ruling by the court. You will usually be expected to answer. I may instruct you that you should not answer. If I instruct you in this way, please follow my advice.
If I object to a question, you should listen very carefully to the objection because it may point out to you that the opposing counsel is asking an unfair question.
For instance, I may object on the grounds that the question is vague, ambiguous, confusing or misleading. If such an objection is made, you should be careful to make sure that you fully understand the question before you answer.
Idea No. 12: Be comfortable.
You have a right not to be made uncomfortable. If the deposition room is too warm or too cold, you may request that reasonable changes be made. If your chair is situated where the sunlight shines in your eyes or the air conditioner blows directly on you, you may change chairs. If the chairs are uncomfortable, you may ask for a more comfortable chair. Do not hesitate to ask for a drink of water if lengthy testimony has caused your throat to be dry.
Lawyers sometimes let depositions run on for extended periods of time without a break. If you are feeling uncomfortable or experiencing pain and need a short recess, do not hesitate to suggest one. If you become tired and feel that your testimony may be affected, let me know. If you feel ill, you may insist upon a recess of the deposition. If the deposition has extended beyond the time anticipated and it is interfering with an important matter, you should bring this to my attention.
COMMON PITFALLS AND TRAPS
- As your attorney, we have drafted a complaint for damages in which we have made certain allegations and requested money damages. The complaint is a legal document that is drafted by attorneys and allegations are made on behalf of the client, and opposing counsel may sometimes refer to this document as “your complaint”, even though it was drafted by your attorney, signed by your attorney, and you may have never bothered to read it.
If questions are asked about something your attorney drafted, you should make it clear that your attorney is the one that drafted the document on your behalf. If you have not seen the document, feel free to say that you have not seen it. You have the right to trust that your attorney has made all allegations to fully and in good faith based on information he has gleaned from you in the course of representation. It’s okay to say that.
- Your attorney has also drafted a “statement of damages”, at the request of opposing counsel, setting forth the damages that may be claimed in the lawsuit including all medical bills and a figure for “general damages”. The request for general damages is generally high, and is disclosed and claimed so as not to limit the value of your case. How much your case is really worth in terms of general damages, is totally up to the jury. Injured plaintiff seldom have a firm grasp of what general damages should be, and it is fair to me that figure up to the jury and not attempt to guess at it during your deposition.
Sometimes opposing counsel will ask you if you are claiming certain types of damages which have not been explicitly discussed with you by your attorney. For instance, opposing counsel may ask if you are claiming lost wages, mileage, psychological damages such as fear of driving, anxiety, depression, aggravation and anger, loss of consortium, loss of life’s pleasure, or pain and suffering.
All of these terms describe what attorneys call “general damages”. You probably will not have a firm grasp of a dollar amount which should be awarded for any particular element of damage, and once again it is totally appropriate for you to leave that up to the jury to decide after hearing all the testimony. If defense counsel surprises you by asking for an element of damage which has not been explicitly discussed, you may truthfully answer that question by stating that you will claim it if your attorney thinks it is appropriate and you will let him know after discussing it with your attorney. Remember, you’re only asking what is fair and justified.
- Opposing counsel may ask who referred you to a particular doctor, and it is quite possible that your attorney has referred you to that doctor. Don’t be afraid to say so if the question is directly asked of you. If your attorney refers you to a doctor, it is because that doctor has a reputation for being competent and honest in his evaluations and recommendations.
- Attorneys sometimes ask “compound questions” which may be confusing and should be restated. For instance, an attorney may ask “Were you talking on your cell phone as she drifted into the merge lane?” When this kind of a question is asked, you may be focused on whether or not you are talking on your cell phone, and not realize that the attorney has assumed that you were actually “drifting into the merge lane”. Even if you enter this kind of a question “no”, you have left the implication that you were drifting into the merge lane, even if that is an untrue fact. Feel free to ask the attorney to restate the question. If your attorney objected to the form of the question because it is a compound question, you will know you are on dangerous ground and should be careful to answer each question truthfully.
- Attorneys will sometimes ask if anyone has discussed her testimony or told you what to say. If this question is asked in an aggressive way, a person may feel as though it were wrong for them to discuss the deposition with their attorney. There is nothing wrong with discussing your upcoming deposition with your attorney and preparing for an attorney who may be trying to get you to compromise your case with unfair questions. Remember, their attorneys are trying to prepare you for unfair tactics, and the bottom line is that you should tell the truth at all times.