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RISKVUE ARCHIVE | FEATURE STORIES

What’s a Deposition

By Melissa J. Quigley

So, you have been served with a notice of deposition, or your attorney has told you that you need to appear for one. Having your deposition taken is usually a necessary part of being a party to a lawsuit, but most clients would prefer not to have to go through this process. You are not alone in looking forward to your deposition with less enthusiasm than a trip to the dentist. Much of the anxiety that comes with having your deposition taken stems from not knowing what to expect from the process. But, as a well-known childhood hero once said, “knowing is half the battle.” By knowing what to expect at the deposition, as well as how to conduct yourself during the deposition, some of the anxiety and uncertainty surrounding this process may be alleviated.

Let’s begin with a basic explanation of the deposition process. Depositions are a part of the discovery portion of a lawsuit. Discovery allows parties to uncover the facts, themes, and issues in the case through various means, such as written interrogatories, production of documents, and depositions. A deposition is a question-and-answer session where the attorneys for the parties involved in the case ask questions of individuals or businesses that may have relevant information that will help the parties build their cases. A deposition can be taken of parties, witnesses, companies, police officers, or any other person who may have knowledge about relevant facts and/or circumstances involved in the case.

Depositions can occur at a variety of different locations, but they most often will take place in a conference room at one of the attorney’s offices. There are usually a number of people who will be present at the deposition. There will be a court reporter who takes down everything that is said on a machine and then transcribes the verbal dialogue into a written document that reads like a script. Attorneys for the parties involved in the action will also be present, along with your attorney. Any party to the action may also attend any deposition conducted in the lawsuit.

The setting for a deposition is usually casual, but do not be misled by the informal setting. A deposition is a formal, legal process that should be taken seriously. The deposition process is governed by a certain set of rules, making it different from ordinary conversation between individuals. Your appearance and demeanor, as well as the answers you provide, will be closely scrutinized by opposing counsel, so it is important that you are properly prepared for the deposition.

The following is a list of items to keep in mind when you are being deposed by opposing counsel:

  • The most important thing to remember is that you need to answer the question honestly. Neither your attorney nor opposing counsel wants you to hide information or distort the truth. You are under an obligation to tell the truth, and you will take an oath to that effect.

  • Answer the question truthfully but do not volunteer more information than what is being asked for by opposing counsel’s question. If opposing counsel wants more information, then he or she will ask you a follow-up question to elicit that information.

  • Take a moment to think about your answer before you say anything. This will give you time to think about the question and make sure that you understand it. Your pauses are not recorded by the court reporter. Additionally, this will give your attorney time to object to the question, if it calls for an objection.

  • Carefully listen to the question being asked. Before you answer the question, make sure that you understand the question. Do not attempt to guess at what opposing counsel is trying to ask. If you do not understand the question, ask the attorney to repeat it or to rephrase it.

  • If the attorney uses a technical term or legalese and you are not sure what that terms means, ask the attorney to define it for you. Do not assume that the attorney means the same thing that you think the term may mean. It is perfectly all right to ask the attorney to define the word or rephrase the question for you.

  • Do not guess as to the answer to the question. A deposition is not a test, and you are not expected to remember everything that has happened to you. If you do not know or you no longer remember the answer, it is perfectly acceptable to say, “I do not recall,” “I do not know,” or “I do not have the expertise to give an opinion.”

  • If opposing counsel’s question is too complex or compound for you to retain all of the parts of that question in your mind, the question is probably too complex and ambiguous to answer. Ask opposing counsel to rephrase or break down the question into parts.

  • Sometimes a lawsuit will involve events that call for questions involving time, speed, or distance. Opposing counsel is entitled to your best estimate, but no one wants you to guess at an answer. Think about the question and give a reasonable answer. Tell opposing counsel if you do not recall or are uncomfortable giving an estimate. If you are only able to give a rough estimate, let opposing counsel know that your response is a rough estimate only.

  • Speak audibly so that everyone in the room can hear your answers. Do not use words like “uh-huh” or shakes or nods of the head to answer a question. The court reporter can not take down nonverbal answers.

  • Try to relax and remain calm. Answer in a polite, serious, and professional manner and be respectful to the other participants. Not only is what you say in a deposition important, your appearance and demeanor also make an impression on opposing counsel.

  • If you start to feel angry or frustrated, ask to take a break so that you can regain your composure. Do not resort to sarcasm or humor, as these types of responses may not convey the same message when read in a transcript at a later time.

  • If you are given a document to review, read it carefully and slowly. Do not assume that you know what the document is or what it says. Before you read the content of the document, look at the other portions of the document, including the date, the information listed in the letterhead, the recipient, the author, the address, and the other people copied in on the letter. After you have an understanding of the framework behind the document, then carefully review the contents. If the document is lengthy, do not feel like you need to review it quickly and understand it right away. Do not feel rushed and take the necessary time to read the document so you are comfortable.

  • You may ask to speak with your attorney at any point in the deposition, but you should try to wait if there is a question pending.

  • Conversations or information gained from your attorney is privileged information and you should not testify to this information.

  • Your attorney may make objections to opposing counsel’s questions. These objections usually serve to preserve the written record if an attorney later wants to argue for the exclusion of the anticipated testimony on some legal grounds. You are still required to answer the question, unless your attorney specifically instructs you not to answer. Listen carefully to what your attorney says when making the objection, as this information may be helpful when formulating your answer to the question.

  • If you start to lose your concentration or if you forget some or all of the question being asked, request to have the question read back to you. If you need to take a break, ask for one.

  • Wait until opposing counsel finishes asking his or her question before you start to respond. You may anticipate what opposing counsel is going to ask you, but the question may be different than what you may have anticipated. This will also preserve a clear transcript as well as allow your attorney to interject any relevant and necessary objections.

  • If you later realize during the deposition that a previous answer may have been incorrect or incomplete, ask for a break and advise your attorney immediately. Your attorney will then determine whether or not to interrupt the deposition so that you can supplement or correct your previous testimony. If you realize this after your deposition is completed, contact your lawyer immediately and advise him or her of the error or omission. This will give your lawyer the opportunity to quickly remedy the situation or at least attempt to lessen its impact.

  • Do not be intimated by the deposition process or any of the participants attending the deposition. Answer confidently and to the best of your ability. Your attorney is present to protect your interests and will help you to avoid any pitfalls in testifying, as well as ensure that opposing counsel conducts himself or herself by the rules.

  • Do not give your opinion unless you are asked to give one. Answer the question with the facts required by the question and do not provide any editorial comments or opinions.

  • Do not allow opposing counsel to cut you off before you finish your answer. Politely let opposing counsel know that you have not finished your response and then insist that you be allowed to finish.

  • When you finish answering the question, stop. Do not ramble or try to fill a pause by continuing to talk. If opposing counsel asks an open-ended question, keep your answer short and succinct. If opposing counsel wants or needs additional information, it is up to him or her to elicit that information from you with follow-up questions.

  • Dress appropriately and present yourself with a well-groomed and professional appearance. It is perfectly acceptable, but not necessary, to wear a suit or other professional attire to your deposition.

Depositions may seem like an intimidating process but with the proper preparation, you can make it through your deposition virtually unscathed. Keep open communication lines with your attorney, get a good night’s sleep, and it will all be over before you know it!

ABOUT THE AUTHOR

Melissa J. Quigley is an Associate in Knapp, Petersen & Clarke’s (Glendale, California) litigation group. She can be reached by e-mail at mjq@kpclegal.com.

riskVue | The webzine for risk management professionals
November 2005



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