By: Jessica Zorn
A deposition is a question-and-answer session when you give testimony under oath before your trial. It is your opportunity to answer questions asked by an attorney and, to some extent, tell your side of the story. Everything said in a deposition is recorded by a court reporter – so anything you say during your deposition could be read out loud at trial.
Opposing counsel will be focusing on a few different things: (1) they want to hear your side of the story, (2) they want to judge you as a witness (see how you will translate on the stand at trial), and (3) gather your testimony so they can prepare to take the case to trial.
What happens during the deposition?
There is no judge or jury in a deposition. Usually, there are only a few people in the room: you, your attorney, the opposing attorney and a court reporter. Sometimes the other party will be in the room, but not always.
Usually, the opposing attorney will begin by asking questions about your background – where you grew up, where you went to school, where you go to church, etc. Those questions help the attorney make sure that your friends and family do not end up on the jury if the case were to go to trial. Everything you say is under oath and will be recorded by the court reporter, so try to speak slow and do not interrupt.
Deposition testimony is not like giving testimony on the stand in a courtroom. If you need a break, ask for one. If you need to speak to your attorney privately, ask for that too. You have the right to get a glass of water or use the restroom, you are not under arrest or forced to sit in the same spot the whole time.
You may hear your attorney verbally object during a deposition, but do not be alarmed. Your attorney probably isn’t trying to signal you to be careful with your answer, he or she is simply putting an objection on the record so that the judge will have to look at the question before it is asked at trial. Unless your attorney instructs you not to answer a question, you can still answer even if there is an objection.
Depositions can last anywhere from thirty minutes to eight hours. Ask your attorney for a more accurate timeline so you know what to expect. Make sure you eat a good meal beforehand and use the restroom to avoid unnecessary delays.
Tips and Tricks for Giving a Good Deposition
Above all else, it is important to remain calm, collected and polite during your deposition. The opposing attorney is trying to see how you would look in front of a jury. If you get agitated or frustrated while you’re being questioned, the attorney will know that he or she can upset you in court and make you look emotional or irrational. Some lawyers will even try to upset you on purpose, but do not fall into that trap. Staying calm and keeping your cool is the best strategy, because it shows the other side and the jury that you are reasonable and confident in your case.
Make sure you talk to your attorney beforehand about any worrisome aspects of your case. If you’re not sure what the speed limit was or you may have had a beer right before your accident, tell your attorney so you will know how to handle those questions if they come up.
The most important tip for giving a good deposition is to only answer the question asked. If you can answer a question in one word, do it.
Do not be afraid to tell an attorney that a question was confusing. A lawyer can always rephrase a question to make it easier to understand. Watch out for a lawyer putting words in your mouth; if the attorney summarizes something incorrectly, do not be afraid to correct them.
Listen very carefully for absolute or broad questions and beware of absolute answers. An attorney may try to trap you by asking a question like, “have you ever had back pain before?” That is a very broad, absolute question. You may not remember ever having back pain, but many people do not remember small instances that required only one doctor visit. Instead of saying “no, I have never had back pain,” the safer answer would be “not that I remember.” Attorneys will research your medical history and try to find one record from twenty years ago that shows mild back pain… and if you testified that you’d never had back pain, then you look like a liar. Instead, hedge your bets and try to answer truthfully: “not that I remember” or “I’ve never had back pain like this before.”
Try to pause or take a breath before answering to make sure you really heard and understood the question. It will help you identify the absolute or broad questions that are trying to trap you.
If you give an answer in a deposition and realize later that your answer was incorrect, feel free to correct your answer. Just speak up and tell the attorney that you suddenly remembered something – it will ensure that your testimony is truthful.
Prepare for your deposition by reading your interrogatory answers again and asking your attorney if there is anything in your medical records you should know about. Your lawyer should be prepared to discuss your criminal history, driving history, medical records, etc. with you in case there is anything you do not remember. You are paying your attorney, so take advantage of their preparedness.
Most importantly, tell the truth, even if it seems like a certain answer would be bad for your case. A lie or a half-truth will probably hurt your case more than an honest bad fact will, because your lawyer has probably already developed a strategy for dealing with the bad fact. You also need to tell the truth because a lie would be considered perjury under oath.
What NOT to do During a Deposition
Do not guess. If the correct answer to a question is “I don’t know” or “I don’t remember,” then say that. Guesses lead to inaccurate answers that could mess up your case.
Avoid absolute answers. Instead of “yes,” try saying “as far as I can remember,” and instead of “no,” try “not that I can remember.” That way, if you remember additional information later, you can change your answer and not seem like a liar.
During your deposition, the opposing attorney may try to catch you in a lie or an exaggeration. Do not exaggerate, make something up, or estimate. If they catch you lying or exaggerating, the attorney can make you look untruthful in front of a jury, and then you will probably lose your case.
Do not volunteer information or over-explain. If you start giving lots of extra information, you are giving the attorney extra facts they can use to prepare for trial, and you are opening the door to hundreds of extra follow-up questions. Witnesses who over-explain during a deposition seem defensive. Have confidence in your case and your attorney; just answer the question. Your answers are little building blocks that your attorney can later build together into a story that makes sense in front of a jury.
Do not talk about any conversation you had with your lawyer or any of your lawyer’s paralegals. Those conversations are privileged, and you do not have to reveal any of it. Similarly, in Alabama state court, you do not have to reveal any conversations or treatment details involving any psychological medical treatment. That includes treatment for drug abuse, alcohol abuse and HIV/AIDS.
Do not show up to your deposition under the influence of any medication or drug that might affect your ability to answer questions. You need to do everything you can to give accurate, clear answers and medications might stop you from doing that.
Lastly, do not joke around or get too comfortable. Some attorneys will make it seem like a deposition is a casual conversation to get you to relax and give away too much information, but IT IS NOT a conversation. A deposition should be a very dry question and answer session, that’s it.
If you have any questions or concerns, do not be afraid to ask your lawyer. A deposition can go smoothly with some preparation and following the basic ground rules. There’s no reason to be nervous or anxious as long as you tell the truth, avoid absolute answers, and stay calm. Your lawyer should be with you every step of the way.
