WHAT IS A DEPOSITION?
A deposition, although not occurring in the courtroom, is a formal judicial proceeding at which sworn testimony is taken from a witness in the form of a question and answer session. As a deponent, you will be asked questions by the opposing attorney and your answers will become part of the official record of the case.
Deposition testimony is every bit as important as live testimony at trial. First, it is testimony given under oath and thus subjects the witness to the penalties of perjury. Second, it is testimony which is intended to be used at trial, and can be used against a witness if his or her story changes. As such, it is imperative that you, the witness, take your deposition seriously and prepare yourself adequately.
Your deposition will likely take place in your attorney’s office, the office of the opposing attorney, or some other neutral site. Those present will be you, your attorney, the opposing attorney, the court reporter and, if there are other parties to your dispute, their attorneys.
RULES TO KEEP IN MIND IN PREPARING FOR YOUR DEPOSITION.
Having your deposition taken is different than having a normal conversation. Your job is to answer questions, to the best of your ability. If you understand and follow these basic ground rules, everything else is easy.
Listen to the questions.
Make sure the question is finished before you start to respond. Here’s why:
■ The court reporter can take down only one voice at a time. Think of it like a tennis match. The second player cannot hit the ball until the first player has hit it and it’s all the way over in the other side of the court.
■ Although you may think you know what the attorney is asking and where his or her question is headed, you could be wrong. So wait for the end of the question. Otherwise, you may end up answering the wrong question or volunteering information you did not want to volunteer, or the deposition will just last a lot longer because the attorney will keep having to start his questions over again.
■ Your attorney may want to object, and if you answer too quickly, he or she will not have the opportunity to do so. Pay attention to the objection and respond accordingly. For example, if the question is, “why did your friend do that?” then the attorney may object that the question calls for speculation, because you don’t know what was going on in your friend’s mind. A good answer would be, “I don’t know.”
Make sure you understand the question. Do not answer a question if you are not 100% sure you understand it. If you misunderstand the question, chances are your answer will be wrong. Once you answer, it will be presumed that you understood the question, and if you try to say later that you didn’t understand it, that will look bad for you. Don’t be embarrassed to say you don’t understand a question being asked. If you don’t understand a question, simply do one of the following:
■ Ask that the question be repeated.
■ Ask that the question be rephrased.
■ Ask for a clarification of the question or just to say you are not sure what is being asked.
Answer the question you are asked — and only the question you are asked. If you are asked what day of the week a certain event took place, do not explain what you were doing that day. Example: “What did you have for breakfast today?” Answer is, “toast.” Answer is not, “well I usually have a big breakfast of juice, eggs and toast, but today I was nervous, so I only had the toast.”
Do not volunteer information. Especially when your answer involves:
■ attorney/client communications;
■ communications with spouse;
■ juvenile court information;
■ arrest records; and
■ other privileged information.
Do not offer to fill in or provide information later.
Only answer the question if you know the answer.
■ “I don’t know” is a perfectly good responses (as long as it’s the truth). “I don’t remember,” “I don’t recall,” and “I don’t recall at the present time” are all perfectly good responses. If true, the best is, “I don’t recall at the present time,” because it makes it easier to change your answer if you later do recall.
■ Keep in mind the difference between “I don’t know” and “I don’t recall.”
■ “I don’t know” means you don’t know now and you never did. “I don’t recall at the present time” means you knew at one time, but you can’t remember right now what the answer is. If you say, “I don’t know,” when you mean to say “I don’t recall at the present time,” and you later do recall, it will sound like you have changed your testimony.
■ But, don’t go overboard with the “I don’t knows.” If you have some information, but not everything, give the information you have. If you claim not to “know” anything, then:
• You may look like you don’t remember anything and your memory is bad and you’re not to be believed about anything.
• You may look like you’re being evasive, which is even worse for your credibility.
• You may look like you’re trying to be difficult. (Remember, you don’t want to be helpful, but you want to be cooperative.)
Don’t guess or speculate. A “guess” or “speculation” is when you really don’t know. A “guess” or “speculation” is different than an “estimate” or “approximation.” Here’s the difference:
■ If I asked you to tell me the length of the table in my conference room, you could estimate it because you used your powers of observation to look at it, and you therefore (if you have any recollection at all) have some basis for saying how long it is. That’s an estimate.
■ But, if I asked you to tell me the length of the kitchen table in my house, that would be a guess because, although you have some idea about how long kitchen tables usually are, you’ve never been in my house and seen my kitchen table. Therefore, that would be a guess.
■ While guesses and speculation are bad, estimates and approximations are good. Not knowing exactly doesn’t mean you know nothing at all. Times, dates, distances, heights and weights are all difficult to remember exactly. Testify to what you know but use the words “about” or “approximately” when giving your estimate.
■ “As best I can recall . . .” is a good way to start an answer when you are not entirely sure.
■ “It was approximately . . .” or “it was about . . .” is a good way to start an answer when you don’t know exactly and are giving an estimate.
■ It is better to give a range as an estimate or approximation (for example, “it was between ten and twenty minutes,” or “he was approximately five to ten feet from me”) than to pick what you think is closest and make it appear that you remember something specifically.
Do not explain your answers. If you find yourself saying “because,” that’s a good indication you’re talking too much. For sure, don’t explain your absence of recollection. Don’t say, “I don’t remember because its been a long time ago.” Don’t say, “I don’t remember because I have a bad memory.” Saying these kind of things will just hurt your credibility. You are not there to explain or to be helpful or to tell your side of what happened. You are there to answer questions only. The attorney will ask for an explanation if he or she wants one.
If you believe that the questioning attorney questioning you has misunderstood your answers, it is likely your attorney has noticed the same thing and will correct the questioning attorney if appropriate. You may also ask to take a break and explain to your attorney what you believe to be happening.
In a deposition, unlike trial, you may take a break at any time, even if there is a question pending. Just ask for a break. You can discuss the question in private with your lawyer and decide how best to respond to the question. Your discussion with your lawyer is privileged — between you and your lawyer only — and you are not required to (and should not) discuss such communications with anyone. It’s better to take a break and make sure you know how best to respond to a question than it is to go ahead with an answer when you are unsure. Getting the response right in the first place is better than trying to correct it later.
■ Don’t say something dumb like, “I’m not sure how to answer that, I would like to ask my lawyer what I should say.”
■ If something comes up that you have not previously discussed with your lawyer, it may be a good time to take a break.
■ If you feel the question infringes on your privacy, you should take a break.
■ If you are tired, take a break.
Generally speaking, it’s okay if your answers do not perfectly match the answers of others. People do not remember everything exactly the same way. Innocent mis-recollection is common. If everyone remembered everything exactly the same way, it might seem like everyone got together to conform their testimony. But, it is important to get the important things right. It is okay to refresh your recollection by discussing your recollection with others. Sometimes, going over the events will jog your memory. But, it is a bad idea to change what you recall happening just because somebody else has a different recollection than you do.
If you think of additional facts you are worried about after the meeting, but before your deposition, then make sure you bring them to the attention of your attorney before your deposition begins.
Write down questions and concerns so you don’t forget them.
Do not bring any documents to the deposition. Either the other lawyer will show you a document or your lawyer may do so. You should not bring notes or any documents.