A deposition is sworn testimony, taken before a court reporter. It is very similar to testimony in court in that it is a live question-and-answer session involving lawyers and a witness. It is different in that there is not a judge in the room, and usually the pace is a little more relaxed. Still, it is usually a fairly stressful process for the witness (also referred to as the “deponent”).
Why do lawyers take depositions? There are generally three reasons:
- To find out what the witness knows (including stuff that might not be directly relevant, or even ultimately admissible).
- To find out how the witness will testify in court (is she credible? nervous? polished?).
- To try and intimidate or harass the witness.
Most lawyers prefer to take depositions relatively late in the game. Generally this is because depositions are a one-shot deal, and so the questioning lawyer will want the benefit of having responses to as much of his other discovery requests as possible.
Some lawyers like to take depositions early, believing it will throw off the other lawyer and/or the witness. Depending on the important issues in the case, there may be relatively little in the way of documentation needed ahead of time.
Usually party-witnesses are deposed at their own lawyers’ offices. Sometimes depositions are taken at the courthouse or at some other convenient location. Even in contentious cases, things like the location and scheduling of depositions are generally agreed by counsel ahead of time, out of professional courtesy, if nothing else.
Many lawyers believe witnesses should spend hours and hours preparing – going over every conceivable bit of testimony they might possibly be called upon to remember. While there is obvious value in spending some time preparing and thinking through your case and your memory of events, I have come to believe such over-preparation does far more harm than good by making the witness nervous, anxious, and self-conscious. The opposite should be the case – you should be relaxed and confident if at all possible. With that in mind, it might help you to keep in mind a few basic “rules” as the witness headed into your own deposition.
Deposition Rule #1 – TELL THE TRUTH, ALWAYS.
This one is so simple it’s practically cliche. We all know you have bad facts in your case. That’s because every case has bad facts on both sides. It’s okay. Your lawyer knows how to minimize the damage of bad facts. What he can’t do for you, though, is make up for you getting caught in a lie. There is simply no more damaging thing that can happen to you in your case.
Deposition Rule #2 – RELAX.
Get in the habit of taking a breath after every single question. That will do three things. First, you have a chance to be sure you understood the question. Second, if the question is objectionable, you give your lawyer a chance to object. And third, you keep the record clean by not interrupting the questioning lawyer.
Deposition Rule #3 – UNDERSTAND THE QUESTION.
I think witnesses start to feel stupid at some point in the deposition. I can’t think of any other reason why people try to answer questions they don’t understand – but it happens all the time. There is no shame in making the lawyer, who has been well-trained in the art of asking questions, reformulate his question into something intelligible. And if he refuses to do so, take some satisfaction in knowing you beat the lawyer at his own game of “hide the ball”, by refusing to take his bait.
Deposition Rule #4 – YOU’RE THE STAR!
This one usually catches people by surprise. It’s obvious but it usually needs to be pointed out, but absolutely nothing can happen in the deposition without you, and the questioning lawyer has to work with that inescapable fact. The answers all come from you. If you need a break, ask for a break (just make sure you answer the last question first). If you don’t know the answer, just say that – don’t guess. If you don’t understand the question, make him repeat or explain it. You are in total control, if you want to be.