Introduction to Your Deposition
What happens at a Deposition? A lot!
Your deposition is probably the most important event that happens in your entire case. Believe it or not, it may be even more important than your testimony at trial. As scary as that may sound, it is actually a very simple event.
A deposition is nothing more than a question and answer session where the opposing counsel asks you questions to learn about your case. A court reporter records your testimony with a stenography machine, and then creates a written transcript to be used at trial.
As long as you tell the truth, there is very little to worry about. However, below is a little more detailed explanation with some tips for giving your best and most useful testimony.
What is the purpose of a Deposition?
Many victims and witnesses look forward to a deposition as their turn to “tell their story.” They want to treat the event as if it is their day in court. However, the complete opposite is true. The deposition is not “your story”, but rather it is a question and answer session by the opposing counsel. The opposing counsel is not the decider of fact, that is left to the judge and/or jury. Opposing counsel is not your friend, but rather someone that wants to learn information about your case to use later against you.
The opposing side usually takes your deposition with three goals in mind. First, they want to find out what facts you have in your actual knowledge and possession regarding the issues in the law suit. In other words, they are interested in what you will say when you testify at trial – if your case does go to trial.
Second, they want to pin you down to a specific story so that you will have to tell the same story at the trial and they will know in advance what your story is going to be.
Third, they hope to catch you in a lie, and thereby they can show at the trial that you are not a truthful person and therefore, your testimony should not be believed on any of the points, particularly the crucial ones. Besides outright lying, they may also want to see if they can make you appear evasive or generally unlikeable.
Depositions follow a different procedure from testimony taken in Court. In Court, Ricketts & Yang – your attorneys – would ask you questions first. This is called “direct examination,” and this will be your chance to tell your side of the story, with a questioner who is on your side and who knows what facts are important to make sure the jury hears. At trial, after direct examination, the opposing attorney would ask you questions. This is called “cross-examination.” However, at your deposition, the opposing attorney will ask all the questions. This is why we tell you that deposition is not the time to try to tell your story; because there is no opportunity for “direct examination,” only for “cross-examination” where the opposing attorney will try to pick your statements apart.
What are the Deposition Rules?
When the deposition begins, most attorneys will provide you with a general statement of the “rules” of a deposition. You should anticipate they will say something along the following:
1. You understand that you are under oath.
2. You understand that your answers are being taken down along with the questions, by a court reporter, and will be typed up in the form of a booklet which you will have an opportunity to review once it has been prepared.
3. You understand that because the Court Reporter cannot take down a nod of the head or other gestures, you must answer each question out loud. With respect to this, please remember to answer with a clear Yes, or No, rather than a Yeah, or Nope.
4. The attorney will also typically explain that you will have an opportunity to make any corrections in your testimony when you read the booklet, but that if you change your answer, (for example from yes to no), then the attorney can comment on that should the case go to trial. Because of this rule, it is of course, very important to be as accurate as possible. Remember though, no one can remember every little detail. What is at stake is your credibility. It is perfectly alright, and even desirable to say you don’t remember, if that is the truth. Sometimes you feel like you should know something, but you just can’t remember it. In that case say, “I’m sorry, it’s just been a long time, I can’t remember that detail.”
5. Finally, the defense attorney will frequently tell you that he/she does not want you to guess, but they are entitled to your best “estimate” of time, speed, or distance. This is a real trap for the unwary as most of us are very poor on dates, time, speed and distance. It is quite common for a person to answer in a deposition that they were going 60 MPH and was about 5 seconds before the collision and the other car was only 100′ away. The problem with this kind of testimony is that; at 60 MPH a vehicle is traveling 88′ per second, thus, it would clearly travel more than a hundred feet in 5 seconds, or the time was therefore, less than 5 seconds. For this reason, be very careful in giving time, speed and distance estimates.
How Should I Answer Questions?
A. Make sure you understand. It is important that you pay close attention to each question the attorney asks. Make sure you understand it entirely before you try to answer it. If you do not understand, you should say that you do not understand the question, and ask the attorney to explain the meaning before you try to answer it.
Then, when the question is clear to you, you should answer whatever is the truth to that question. If you know the answer, then of course, you state what you know to be true. If you don’t know the answer, you should say, “I don’t know”, because that is the truth. If the question calls for something you once knew but have now forgotten, you should say, “I do not remember”, because that is the truth. You should not be ashamed to say, “I don’t know,” or “I don’t recall,” or words to that effect, if that is the truth.
B. Wait until the other lawyer finishes the question before you answer. Do not attempt to anticipate his question. You must listen, understand, answer and stop. This is a very common problem in depositions. Trying to answer the question before it is finished will make for a confusing transcript, as the court reporter can’t take down to people speaking at once. It also is problematic because the attorney may have a different conclusion to the question than you thought. Likewise, by answering to soon, you did not allow your attorney a chance to object.
C. Don’t let the other attorney put words in your mouth. You have answered a number of questions, the insurance attorney may summarize your testimony and ask you if what he says is not “substantially correct.” When this is done, the attorney may include some facts which are correct, but also some other statements which are not exactly correct, and then try to get you to say that the entire summary is substantially correct. Don’t be mislead by this tactic!
Whenever the other attorney summarizes your testimony, this is usually a sign of danger! If he does not summarize your testimony exactly the same way you said it, then you should assume it is a trick. Do not agree with the summary. Instead, you should say that the way he said it was not your testimony. If he wants to know why, then you can point out the parts which he has misquoted. This gets back to our same basic rule that there is only one answer to any question, and that is the truth.
When people leave a deposition and feel like they were “tricked,” this is usually where it occurs. Be very cautious whenever the attorney attempts to summarize.
D. Mistakes in Depositions. During the course of your Deposition you may suddenly realize you have given an incorrect answer to a previous question. If this should happen, you should immediately interrupt the Deposition and ask to correct your previous answer. Although a Deposition may be corrected later, it is better if corrected at the time it is being taken.
Pitfalls to avoid in a deposition
1. Always remember that your only job is to give the facts as you know them. You must give the facts that you know. You do not, however, have to give opinions and therefore, you should not give opinions. Generally speaking, if you are asked a question which calls for an opinion your attorney will object to the question, however, after his objection, if he advises you to go ahead and answer and you do have an opinion on the subject, then you may give it. Be honest, but be careful about stating strong opinions unless it is about the strength of your case or the wrongfulness of the defendant’s behavior.
2. Never state facts that you don’t know. Quite frequently you will be asked a question by an attorney that he knows you probably don’t know. You may feel that you should know the answer and be tempted to guess. This is a mistake. You should only answer a question if you are quite sure you know the answer. If not, say that you don’t know. Otherwise, the opponent will try to show that you either don’t know what you are talking about or simply that you are deliberately misstating the truth.
3. Never attempt to explain or justify your answer. It is not your job to explain until asked. Do not apologize or justify what you did unless the opposing attorney explicitly asks you, or you risk appearing defensive – as though you did something wrong.
4. You are only to give the information which you have readily at hand. If you do not know certain information, do not give it. Do not look for the answer on your phone, in your notes, in your calendar, from your counsel or anyone else. Do not promise to get information for the opposing side – your attorney will do that if necessary.
5. Do not let the opposing attorney get you angry or excited. This makes you look bad. You must be relentlessly polite, and if you feel you are unable to continue being polite then you must ask for a break. Under no circumstances should you argue with the opposing attorney or let him get you to appear frustrated or angry. Use the same tone of voice and manner that you do with your own attorney. Just getting emotional gives your opponent a huge advantage. Thus, you should be calm and courteous no matter what he says to you.
6. If I begin to speak, stop whatever answer you may be giving and allow me to make my statement. If I am making any objection to the question that is being asked of you, do not answer the question until I advise you to go ahead and complete your answer. If I tell you not to answer a question, then you should refuse to do so no matter what opposing counsel tells you.
7. Tell the truth. The truth in deposition or on the witness stand will never really hurt a litigant. I can explain the truth. But there is no explaining why a client lied or concealed the truth. The truth does not destroy your case. However, lying or deliberately concealing information destroys your trustworthiness, and therefore your case.
8. Never joke in a deposition.
9. The best thing that can happen in a deposition is that opposing counsel just doesn’t get it, asks you all the wrong questions, can’t ask a question in a clear way to get you to answer it properly and eventually gives up and moves on, focuses on all the wrong things, and gets the wrong idea when you do nothing more than answer his questions truthfully. Do not try to help them do their job when they’re blundering down the wrong path. Let them find out how mixed up they are later – at trial.
10. Both during and after deposition, do not chat with the opponents or their attorneys. Remember, the other attorney is not your friend, and is not there to help you. They are there to help their client, and usually that means doing so at your expense. Do not let his friendly manner cause you to drop your guard and become chatty.
11. Do not try to figure out before you answer whether a truthful answer will help or hinder your case. Answer truthfully.
12. Answer questions directly. Another common mistake is failing to directly answer the question asked.
Question: “Did you give an arm signal before turning?”
Correct Answer: “Yes.”
Incorrect Answer: “I always do” [the attorney did not ask what you always do, but only what you did this time.]
What should I wear?
Your deposition is like a job interview. It is the defense firm’s opportunity to evaluate what kind of impression you will make on a jury should the case actually go to trial. If you make a good impression as a sincere, honest person, then the value of the case will be higher than if you make a less attractive impression. Accordingly, you should wear clothes that are neat, clean, and pressed, but not flashy or overly expensive. You should also be well-groomed, just as you would be for a job interview. If you don’t normally wear a business suit, then wear slacks and a shirt or in the case of women, an attractive dress or skirt and blouse. In addition, again, like a job interview, you will want to have a good night’s rest and you will want to, at all times, appear truthful, sincere and cooperative.