If you have been subpoenaed to give a deposition as a witness in a lawsuit, it’s natural to feel anxious. However, understanding the purpose and process of depositions can help alleviate some of your fears.
Lawyers use several tricks in depositions, such as raising objections[1], referencing items outside the scope of discovery, discussing privileged information, referring to the past, discussing a situation, asking for a break, asking for further instruction, refusing a question[2], using the ‘obvious yes’ technique[3] and pausing before answering questions[4].
Read Also: How To Answer Questions For Interview
What are Depositions?
It is a sworn statement given by a witness in a lawsuit outside of a courtroom setting. Its purpose is to gather evidence and information in a fact-finding mission similar to testifying in court.
Depositions may be conducted before a trial, before a case is filed with the court, or even after a trial has concluded.
Attorneys from both sides of the case will ask questions in a question-and-answer format to determine the witness’s knowledge of the case.
Why Depositions are Necessary
Depositions are an important part of the discovery process in a lawsuit, during which both parties are required to share the information they have.
Both the prosecution and defense have the right to know what witnesses will say at trial in advance, so they can prepare their cases accordingly.
You may be a witness or a plaintiff (the person who initiates the lawsuit) in a deposition.
The Deposition Process: What to Expect
As part of the discovery process in a lawsuit, depositions are sworn statements given by witnesses in an out-of-court setting.
These fact-finding missions serve to gather evidence and information, similar to testifying in court.
Depositions are typically held before a trial, but they can also be conducted before a case is filed or after the trial has concluded.
During the deposition, attorneys from both sides of the case will ask questions in a question-and-answer format to determine the witness’s knowledge of the case.
The deposition process usually takes place in the conference room of the requesting attorney’s law office.
Attorneys from both sides will be present to ask questions, and the witness may bring notes if needed.
The deposition is recorded in case the witness is unable to testify at trial for any reason.
It may be recorded by one or both sides, or there may be a legal stenographer taking notes.
With the judge’s permission, the jurors may view or listen to the deposition instead of having the witness testify in court.
Getting an Attorney for a Deposition
During a deposition, it’s important to remember that you have the right to legal representation.
This means you can choose to have an attorney present to advise you and represent your interests.
If you’re a party to the lawsuit, you’ll likely already have an attorney.
If you’re just a witness, you may choose to have an attorney present, especially if the case is complex or if you have personal or legal concerns, you’re worried about disclosing.
If you decide not to have an attorney present, you may still change your mind if you feel uncomfortable or at a disadvantage during the questioning.
You can request a break to seek legal counsel, and the deposition will be rescheduled.
It’s also important to note that even with an attorney present, they may not always be able to stop certain questions from being asked.
However, they can advise you on how to answer and can discuss any questions with you before you respond.
Overall, it’s up to you whether or not to have an attorney present at a deposition. Still, it’s always a good idea to at least consider it, especially if you have legal or personal concerns.
Tips for Giving a Deposition
Preparation is key when it comes to giving a deposition. Prior to the deposition, take some time to think about the event or circumstances you will be questioned about.
It may be helpful to jot down some notes to refresh your memory. You can bring these notes with you to the deposition.
In terms of presentation, it is important to be professional during a deposition. Remember that giving a deposition is similar to being a witness in a trial, so dressing appropriately is crucial.
Avoid wearing casual attire such as jeans, cut-offs, or tank tops. Instead, opt for a shirt and avoid overdoing makeup or hairstyles.
Lawyers are the only persons in whom ignorance of the law is not punished.
Jeremy Bentham
How to Answer
When giving a deposition, it’s important to remain professional and respectful at all times.
Make sure to sit up straight, maintain eye contact, and use words like “yes” or “no” rather than just nodding.
Avoid using absolutes like “always” or “never,” and if you don’t know the answer to a question, it’s better to admit it rather than guessing.
If you don’t understand a question, ask for clarification rather than trying to answer it.
Remember, a deposition is similar to testifying in court, so it’s important to dress and behave appropriately.
During a deposition, an attorney may try to use certain tricks or tactics to get the witness to provide certain answers.
One such tactic is asking leading questions, which are designed to steer the witness towards a particular answer.
It’s important to remain aware of these tactics and resist the temptation to conform to the attorney’s line of questioning.
Instead, focus on accurately answering the questions to the best of your ability.
Tell the Truth
Telling the truth is crucial when giving a deposition, as you are under oath, just as you would be in court.
It’s important to know when to stop, however. Be sure to only answer the specific question asked of you rather than volunteering additional information.
It’s also important to be consistent in your responses, as the opposing attorney may try to catch you in an inconsistency by asking variations of the same question.
Remember, it is legal for attorneys to be tricky in this way.
How to Win a Deposition
To win a deposition, the witness must be sworn in by the court reporter. It is important to prepare for the deposition with your lawyer, studying all documents and exhibits related to the case.
During the deposition, it is important to answer questions truthfully; if you do not remember or know an answer, then say so.
In a deposition, an entity designates one or more people to speak on its behalf, and the examiner will ask questions to obtain information that will help their client prove their case.
Deposition Questions
Common deposition questions include introductory questions to put the witness at ease and background questions to establish the witness’ knowledge of the case.
Questions may also be asked to close the door on any potential future adjustments or additions to the answer.
Deposition questions can also be used to gather pretrial information and discover what a witness knows about a given case.
There are no set rules for what questions can be asked during a deposition as long as the questions are not harassing, overly repetitive, or irrelevant to the case. However, certain types of questions are commonly asked during depositions, including:
- Questions about your personal background and qualifications
- Questions about your knowledge of the facts of the case
- Questions about your observations and experiences related to the case
- Questions about any documents or records you have related to the case
- Questions about your testimony or statements made to others about the case
Answering these questions honestly and to the best of your ability is important. If you do not know the answer to a question, it is acceptable to say that you do not know or are not sure. You should also inform the attorney if a question is unclear or needs clarification.
Take Your Time
When you’re giving a deposition, it’s important to remember a few key things to ensure that you’re able to provide accurate and helpful information.
First, take your time and be deliberate in your responses. It might be tempting to want to get the process over with quickly, but it’s crucial that you carefully consider each question and take the time to review any documents or photos that you’re given.
Additionally, it’s important to be truthful in your responses. Remember that you’re under oath, and it’s essential that you only provide accurate information. Avoid volunteering extra information and be consistent in your responses to different variations of the same question.
Finally, it’s important to remain professional throughout the process. This means dressing appropriately, sitting up straight, and making eye contact with those present. Be pleasant, but avoid being silly, and remember to address people by their full names rather than just their first.
After the Deposition
Depositions are a crucial part of the discovery process in a lawsuit, serving as a fact-finding mission to gather evidence and information.
During the deposition, you will be asked questions in a question-and-answer format by attorneys from both sides of the case.
It is important to be prepared and professional during a deposition, as it is similar to testifying in court and is often recorded.
Here are some tips to help you succeed:
- Know your role: You may be a witness, plaintiff, or defendant in the case, and you may be asked questions as an individual or as an employee or independent contractor. It is important to understand your role and the purpose of the deposition.
- Be prepared: Spend some time before the deposition date thinking about the events or circumstances you will be questioned about and make notes to jog your memory. You can bring the notes with you to the deposition.
- Dress professionally: Wear appropriate attire for a formal setting, avoiding jeans, cut-offs, tank tops, and T-shirts. Keep makeup and hairstyle understated.
- Be professional and courteous: Sit up straight, make eye contact, and be pleasant but not silly. Remember that the deposition is being recorded and address people by their full names, such as “Ms. Smith,” not just “Sally.”
- Answer honestly: You are under oath during a deposition, and it is important, to tell the truth. However, do not volunteer information and only answer the specific question asked. If you do not know the answer, it is better to admit it than to guess. If you do not understand a question, ask for clarification.
- Be consistent: You may be asked the same question multiple times in different ways. It is important to give the same answer each time to avoid inconsistencies.
- Take your time: It is okay to pause and think before answering a question. If you are given documents or photos to look at, take the time to review them carefully before responding.
- After the deposition: You may still be called as a witness at trial, so it is important to give the same answers as in your deposition unless you remember something new or something has changed.
Depositions are a crucial part of the discovery process in a lawsuit, allowing both parties to gather evidence and information through sworn testimony given by witnesses.
It is important to be aware of the tactics and strategies lawyers may use in depositions, and to consider seeking legal representation if you have concerns about the process.
By preparing in advance and understanding the legal implications of your testimony, you can give a successful deposition and effectively communicate your knowledge of the case.
Sources:
- https://awajis.com/us/22-tricks-lawyers-use-in-depositions
- https://depositionacademy.com/10-traps-lawyers-use-in-a-deposition/
- https://www.hoganlegal.com/lawyer-cross-examination-tricks-and-techniques-you-can-use/
- https://talkovlaw.com/deposition-tips-traps-tricks/