What Is a Deposition? What Do I Say?

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 The Do's and Don'ts of a Deposition

A deposition is the taking of out-of-court testimony of a witness. After a civil litigation has been filed, each side, as part of the process known as discovery, is permitted to question the other side. This questioning pertains to facts, witnesses, and evidence the other side may intend to use in court proceedings. During the deposition, one side’s attorney asks a witness a series of questions as to the witness’s knowledge of facts, circumstances, and events relevant to the case. 

The witness can be the other party, someone the other party claims to have relevant knowledge, or an expert whose opinions and conclusions are sought. The purpose of a deposition is to obtain answers to the attorney’s questions, from a witness, who is sworn in, under oath. During the deposition, a court reporter takes notes of the proceeding. These notes consist of word-for-word recording of what the witness says.These notes are then assembled into a deposition transcript. 

Either side may obtain a copy of that transcript. Witnesses are permitted to review their transcript testimony. If a witness believes the testimony was inaccurately recorded, the witness may note perceived inaccuracies, and what the witness maintains their actual testimony was.

Preparation for a deposition is of significant importance.  Attorneys brief their clients in advance as to how to prepare. Witnesses can prepare by reviewing documents and statements related to their claims or defenses. When the witness arrives to be deposed (to have the deposition taken), the witness should be suitably dressed. 

The witness should arrive with documents they may be questioned about. The witness should arrive on time, and be mentally and physically prepared. Having received adequate rest the night before is key to adequate preparation. If a witness is poorly prepared, the witness may answer questions by giving unhelpful information or too much information.

What is a Deposition?

Depositions are used by parties to obtain relevant evidence about the case. Evidence is material that supports one party’s claims or more contentions. For example, if a plaintiff in an auto accident case claims the defendant driver was negligent, the plaintiff’s attorney can depose the driver. The attorney can ask the driver if there were any conditions that impaired the driver’s performance before the accident. Such conditions may include whether it was raining, or whether the driver neglected to wear their glasses.

Depositions are used when the facts of a case are disputed by the parties. When a deposition has been completed, it can be offered into “the record”  as admissible, relevant evidence. This means that a party can use and refer to the deposition during the trial. The trial is the presentation of a party’s case before a jury or a judge. A presentation before a judge is known as a bench trial. 

A party may use the deposition at trial  to demonstrate a witness testifying at trial is not being truthful. Trial testimony on a given question may vary from how the question was answered during the deposition. A lawyer may point out these discrepancies to call the witness’ credibility into question. This process is known as impeaching the witness.

What Happens During a Deposition?

During the deposition, attorneys from each side ask witnesses a series of questions. For example, in a car accident case filed by a plaintiff, an attorney for the plaintiff may ask the defendant a series of questions. The questions during a deposition are “who, what, when, where, and how” questions.” The questions are designed to obtain relevant information. 

Typically, the witness being deposed is represented by their own attorney. During the deposition, an attorney may ask a question that both sides had agreed was improper (e.g. relevant, or leading). The other attorney may make an objection. The objection often prompts the asking attorney to withdraw the question. In some instances, a dispute may develop over whether a witness must answer a particular question. 

If the deposition is being conducted in a court, the parties can attempt to secure the assistance of a judge. The judge will determine whether the party has to answer. Many depositions occur at the law offices of the attorney for the person being deposed. During such depositions, where a judge is not readily available, disputes are usually settled. This occurs through the attorney asking the question in a manner satisfactory to all parties.

During the deposition, a court reporter records what the witnesses and attorneys speak,   The resulting transcript can then be obtained by the parties. Some depositions are also videotaped. The person videotaping the deposition is called a videographer. 

During the deposition, a witness must truthfully answer questions asked of them. After the attorney for one side completes their deposition of the other party, the other party’s attorney may then ask their client questions. These questions serve as “follow-up” or “clarifying” questions. If necessary, the other attorney may then ask “redirect” questions – questions relating to the follow-up or clarifying questions. The attorneys for the parties may choose to have a “break’ in the deposition, to obtain lunch or to prevent questioning for a long period of time. 

What Things Should I Do If I’m in a Deposition?

During a deposition, an attorney may ask a witness the question does not know the answer to. If a witness does not know the answer, or can only guess, the witness should respond to that effect. The witness may also be asked a series of basic questions about themselves, including whether they have been involved in prior legal proceedings, have a criminal record, or are taking any prescription medications on the day of the deposition. 

Witnesses should answer these questions truthfully, to the best of their ability. A witness should not argue with an attorney asking a question. If a witness needs to take a short break to discuss a particular question with their attorney, the witness may ask to do so. Witnesses must be prepared to answer questions for a potential period of several hours. 

During this time, the attorneys may object to the form of each others’ questions. Questions that suggest or lead a witness to an answer, or that imply a fact that has not been established, can serve as the basis of an objection. While the attorneys are speaking to each other, the witness should not be speaking. The witness should answer the questions being asked of them,and only those questions.

To prepare for deposition, a witness can review documentation related to their claim. A witness can prepare for deposition through their attorney’s assistance. The attorney can discuss what questions are likely to be asked, and the attorney can “practice” the witness’s answer with the witness. The attorney may not “coach” the witness, either before the deposition or during it.To “coach” a witness is to tell a witness how to answer a question before the witness has had an opportunity to speak. A witness’s answer must be the product of their own thinking. The answer cannot be the product of the attorney’s influence.

What Should I Not Say and Do If I’m in a Deposition?

A person who is being deposed should not volunteer information. Nor should the witness tell the attorney asking the questions that the attorney can find “additional information” by consulting a document, diary, etc. The attorney is responsible for asking questions, and for obtaining answers. Witnesses should not become argumentative with the other side’s attorney. If a witness does not understand a question, or cannot hear the other attorney, the witness should let the attorney know. That way, the question can be rephrased or repeated, allowing the witness to answer. 

Refusing a deposition is typically not permitted. A witness receives notice that their deposition will be taken through a document called a Notice of Deposition.This document contains information about the location, date,and time of the deposition. If the Notice of Documentation has been served in accordance with the law, the witness must attend. Sometimes, a witness may be unable to attend due to unavailability. If this is the case, the witness can attempt to reschedule the deposition. If a witness fails to attend a deposition, the other side can obtain an order from the judge requiring attendance. 

Do I Need an Attorney for My Deposition?

If you have been injured through someone’s negligence, you should consult a personal injury attorney. An experienced personal injury attorney can review the facts of your case. The attorney can represent you at the deposition, and at trial.

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