A deposition is a discovery tool whereby a party's (or other witness') testimony is taken under oath to obtain information regarding the facts and circumstances of a case as well as a party's position on issues. Depositions are for three purposes: (a) to get information; (b) to assess the witness' demeanor and credibility; and (c) to obtain a record of statements that can later be used to impeach the witness.
A deposition can cover all relevant information as well as that which may lead to relevant information and is generally more broad than testimony allowed at trial (i.e., hearsay not precluded at depositions).
A deposition can be used to impeach a witness if his/her prior deposition testimony contradicts testimony he/she gives at a subsequent hearing or trial. Therefore, it is important to listen carefully to the questions asked and answer them truthfully without conjecture or embellishment.
On that note, it is important to realize that many questions can be answered simply with one word: "yes" or "no". Therefore, whenever a question can be answered with just a "yes" or "no," do not volunteer information.
Depositions are attended by a court reporter who will be taking down everything that is said in order to make a transcript, therefore, it is important that all responses are verbal. For example, you should say "yes" or "no" as opposed to "um hmm" or "un uh" as these may be misunderstood easily and the transcript will then not accurately reflect your (intended) testimony. Also, do not make physical gestures, such as nods of the head, as these cannot be easily transcribed as well.
Because a court reporter takes down everything that is said, it is necessary that a complete record is made; therefore, only one person should speak at a time. Do not speak over another person. For example, if you want to jump in and respond to a question before the other attorney has finished asking it, let him/her state his question completely before you respond.
If an objection is made (by your attorney), do not respond to the question until the objection is resolved. Just because an objection is made does not mean you will not have to answer the question; rather the objection preserves the right of counsel to later object to the admission of the objected to testimony at trial. A judge is not physically present at the deposition. When objections are made by the attorneys, it is to make a record. Later, when the transcript is available and the judge is available, the attorneys can hash out the objections and the judge will rule on them.
A deposition is not a test and there are no right or wrong answers; rather there are only true and accurate answers. Do not give answers that are incorrect just because you think they sound better, are more impressive, etc. To that end, "I don't know" and "I don't remember" are perfectly good answers provided such responses respond truthfully to a question asked. On the other hand, do not answer "I don't know" or "I don't remember" just to avoid having to answer a question that you would rather not-these responses are not meant to be used to evade answering questions.
If you do answer a question with "I don't know" or "I don't remember" and a few questions later in the deposition (or at any subsequent point in the deposition), something triggers your memory and you suddenly recall or know the answer to a previously asked question, do not hesitate to point out that you would like to correct/ clarify a previous response. Do not worry about looking dumb - you are here to provide an accurate record. There will be a problem if you say you do not recall something during a deposition and then intend to testify to that same matter with detail at trial.
Also, if for any other reason, you have to change or clarify previous testimony, do so during the deposition as changing testimony afterward is not easy and very involved.
Do not guess. Again, it is important to only provide information you know. If you can estimate, you can do so, but make sure you include in your response the fact that you are estimating. Also, once you have made an estimation, do not let the attorney deposing you try to get you to second guess your estimation by insisting it was different.
On that note, if an attorney attempts to badger you, argue with you, or continually ask the same question again, objections will be made. Again, this does not automatically mean you will not have to answer a question, but it is important to allow for the objection to be resolved before responding. Do not become angry in return.
The attorney requesting your deposition has the right to ask you questions and is given generally broad discretion in asking questions; it is not your place to ask him/her questions or take issue with or argue with his/her questions. Anything objectionable will be objected to on your behalf.
There is one exception to asking questions, and that is if you do not understand a question asked of you or you did not hear everything asked of you. In these instances, by all means, ask that the question be repeated or rephrased and only answer once you are certain you have heard and understood what is asked of you. Otherwise, once you answer, it will be assumed you understood the question being asked of you.
A deposition is not a test, so try not to be nervous. On the other hand, a deposition is not time to engage in conversation. Therefore, only answer the questions asked of you as it will make your deposition go more smoothly and it will be concluded sooner. You do not need to volunteer information, open doors, and do the other attorney's work for him/her.
If you need to take a break, say so, a deposition is not an endurance test.
When you discuss your injuries, if applicable, this is one time when you can give details because simply to say something hurts or causes you problems does not define your ailment. Therefore, you can discuss symptoms, degree of pain/handicap, and areas of your life affected and to what extent.
If you wish to confer with your attorney you can and should ask for a break. However, do not look to your attorney to answer a question for you. Similarly, if information is asked of you, even if your spouse/ opposing party has this same information, do not respond by saying that " wife/husband has that information or my spouse knows the answer to that." Your deposition is being taken to discover what you know, not what anyone else does.
In the end, a plaintiff's attorney is attempting to find evidence to support his/her theory of the case. In a negligence case, for example, the attorney must prove a legal duty, a breach of that duty, a link between the damages and the defendant's actions or omissions to act, and the damages themselves. In an employment discrimination case, the plaintiff's attorney must prove that the plaintiff was a member of a "protected class" and there was disparate treatment of him/her that led to damages.
There are legal defenses to almost every claim. For example, in a negligence case, a defendant might claim that he/she did not have a legal duty to the plaintiff or that someone else caused the damages-or part of them. In a discrimination case, the employer might claim that he/she had no notice of a hostile environment or that the plaintiff was fired or disciplined on a non-discriminatory basis for violating company policy. It is important that you understand that theory of your case. You should ask the attorney to go over the "elements" of your claim or defense so that you understand the point of the deposition questions being asked of you.
Depositions can be taken of parties and non-parties. Generally, only the witness and the parties can be in the deposition room during the deposition. If you want a spouse or other person to be present, you should discuss this in advance with your attorney-and that attorney will discuss it with opposing counsel.
Some depositions are videotaped. There has to be notice in advance that the deposition will be videotaped, so you should not be surprised. You will be asked to wear a microphone, and the camera will be pointed at you. Try to ignore this as much as possible and concentrate on the questions being asked of you.
On a last note, a deposition is like an audition or rehearsal for trial. Your dress matters. Your demeanor matters. Try to behave as you would in court so that we can help you modify anything that needs attention.
It takes from 10 days to two weeks to get a deposition transcript. You are entitled to see the deposition transcript or get a copy of it. The person who set up the deposition pays a larger amount for the transcript than the opposing party does. The average cost of a normal deposition is around $600. For an extra cost, the court reporter will "expedite" the transcript and/or provide a computer disk of the transcript. There is a glossary at the end of the transcript, so that is a help in locating testimony on particular topic. The court reporter can either take the exhibits with her/him and provide copies with the transcript to let the attorney taking the deposition keep the original exhibits with him/her. Often the attorney taking the deposition will bring copies with him/her of the exhibits he/she intends to include in the deposition, and those copies will be provided to opposing counsel so that the court reporter does not need to handle them. There is normally a good description of the exhibit in the transcript, so it is not a problem for the attorneys to keep the exhibits themselves. It also avoids some of the cost associated with a transcript.
