Preparing for a Deposition

By: Robert Giroux, Partner

Today I’m going to discuss with you a little about taking depositions, or better yet, attending depositions. So if you’re a plaintiff, meaning the person bringing the case, or you’re a defendant, the person against whom the case is being brought, these are some things you want to think about as you’re getting ready for and attending your deposition. 

Meet  2-3 times with attorney prior to Deposition
First and foremost, you want to make sure you’ve met with your lawyer at least 2 or 3 times before the deposition. Hopefully the meetings have been regular since the time that you retained the attorney or he or she informs you that they were your attorney because the insurance company hired that person for you. But, since the start of the relationship you should have met with the person regularly and certainly before your deposition begins you want to meet with that person and prepare for your deposition multiple times. 

You want to look at the pertinent documents, complaint, maybe some records that you’ve created, maybe some medical records, or your defenses in the case. You don’t want to review anything that you might have to turn over during the course of the deposition—something that we would call attorney-client privilege—but you want to look at those documents that already exist in the case or will be existing in the case at some point in time. 

Relax and tell the truth.
Next, and very, very importantly, you want to tell the truth. You don’t want to ever feel like you have to win the case or if you say something wrong you’re going to lose the case. You shouldn’t be in that position. Your attorney has undoubtedly done a good job making sure they’ve pled a valid defense or pled a valid claim. If they haven’t, you’re with the wrong attorney, but if they have (and they should have) then tell the truth. That’s all you need to do. By doing anything other than telling the truth you’re just going to cause problems for yourself and the case. So relax, tell the truth, you’re there just to tell your story and to answer the questions for the attorney who’s going to be asking you those questions.

Give short and concise answers
In terms of the deposition answers, you want to try to be short, concise, and answer the question that is posed. A lot of people get very nervous and they ramble on, and they go on and on and on about other issues or other things. The problem with that is you prolong the deposition. You give the attorney asking the questions lots of different areas to go into because you’ve raised them in your answer, and you’ve convoluted the issues a little bit or at least you’ve convoluted your role in the case. So try to be short and concise and to the question that’s answered. “Yes, no, I don’t know, X, Y” to the best of your ability.

Don’t Speculate
Next, you don’t want to speculate. A lot of people in normal conversations talk about a lot of things that maybe they don’t know everything about, or maybe they even haven’t learned or know firsthand. In a deposition it’s very important that you don’t speculate about those things, again because you can get yourself in trouble. You can get yourself talking about things that you really don’t know about.

When you’re asked a question in a deposition, ask yourself these questions: 
1.    Do I know it because I saw it? 
2.    Do I know it because I experienced it? 
3.    Do I know it because it relates to me personally, it’s a personal item? Or 
4.    Do I know it because I heard it firsthand? 

If so, go ahead and answer those questions honestly, straightforwardly, truthfully. If it's things or items or statements you’ve heard from other people that you never really experienced, that would be speculation. You’re basing your testimony at that point on the veracity of other people who are not there in the room. It’s not a good idea and it’s a hazard potentially.

Avoid Absolutes
Sometimes people just want to say ‘yes’, ‘positively yes’, or ‘never, I’ve never done that before’.  Avoid absolutes all the time in your depositions because sometimes you make mistakes. Look, we’re all human. You don’t remember everything; it’s not possible for you to remember everything, so do your best to try to avoid absolutes, answer the question as well as you can. And again, you might have to qualify “to the best of my recollection” or “as far as I can recall” or “not positive, but X is the answer, or Y is the answer”.  As long as you qualify, you give yourself some room for explaining an answer later on. 

Remember, the deposition is being taken for essentially two reasons: 

  1. To get your story in the case, and the other attorney wants to make sure they fully and completely get your story so that they understand it when they go back and tell the people they need to tell and will report to the people they need to report to, and to move forward with the case either defending it, or prosecuting it, or maybe settling it. 
  2. The next thing, and this is the important part, they want to get a deposition transcript that they can use to cross-examine you at the time of trial. This is not trial, this is a deposition before trial and they want, the attorney wants, to get a deposition transcript that they can use against you at the time of trial to cross-examine you in the event that you change your story or you made a mistake or you were wrong about something which happens from time to time. So avoid absolutes.

You have rights during your deposition. Take breaks if you need to.
Next, this isn’t something that you are required to submit to without any rights. You have rights. You can take breaks. You can take them as often as you feel like you need. The only exception to that is you can’t take a break while there’s a question pending. So if some attorney asks you a question, you can’t take a break, leave the room, come back and then answer the question. You can however, in between questions, take breaks as much as you want. This is not a marathon; this is not an endurance test. This is simply a day for you to tell your story and answer questions about the case at hand. So take breaks, relax as best you can even though it’s hard, and don’t let anybody force you to continue to answer questions if you feel like you need to clear your head. Relax for a moment, get off of the camera, or off of the transcript for a moment just so you can collect your thoughts or to rest your brain for a moment.

Don’t worry about lawyers making objections.
For the most part, don’t worry about the objections. Lawyers are trying to protect the record and they’re following rules you probably haven’t been made aware of. So as there’s bickering or arguments or statements or objections, ignore it, just focus on yourself answering the questions as best you can, 

You have rights: do not put up with harassment from opposing attorneys.
There are some rights, like I said, taking breaks is one of them. Another one is you do not have to put up with harassment, or embarrassment. If you find that an attorney is asking you questions in a way that’s intimidating or insulting or embarrassing, you don’t have to put up with that. Take a break, talk to your attorney, tell him or her that you believe it’s going on, or yourself say “I think you’ve asked me that five times now, I think I’ve tried to explain myself as best I can, please stop doing that”. And when you take that position, it’s really hard when you’re the attorney on the other side to continue down a path, because a person has asked you, “please stop doing that”. And no lawyer wants that transcript in front of a judge someday over an argument where someone is saying you were acting in a harassing fashion and the judge looks at that transcript and says, “Yeah, maybe you were”. Attorneys don’t want to be put in that position, so as a deponent, as the witness, you want to make sure you state that to somebody who is maybe pushing you down that road.

Ask Questions to slow down the process.
Don’t let the lawyer push you around. Ask questions. If you don’t understand the question that’s posed to you, ask the lawyer to clear it up. Don’t let the lawyer just rush through, because often times we’re trained to just keep going like a freight train and just keep asking questions and getting answers that are favorable to us and we just keep going down that road. As a witness, you want to know that happens from time to time. Take a pause, there’s no rush, you’re not in a hurry, you shouldn’t be in a hurry. Give yourself a moment or two to reflect on the question, and then answer it. Or ask questions. Ask for clarification. Ask the attorney, “sir, or ma’am, what do you mean by that? I’m not really sure what you’re talking about. Could you please explain it to me better?” Or if nothing else, ask them to repeat the question, because this is a nervous time for you. This is a difficult thing. Lawyers go through it all the time, witnesses do not. Ask the attorney to repeat the question. And again, take your time.

So in conclusion, tell the truth, relax, take your time, you’ll be fine.

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