The Rules of Depositions

Let's talk depositions.  Everyone knows about depositions, because they're the only form of discovery, or information gathering, that's interesting or dramatic enough to be put on television. Any TV show that involves a lawsuit, shows a deposition. For those of you who have never watched TV or a movie involving one, a deposition is the taking of oral testimony under oath outside of a courtroom in front of a court reporter.  The person taking the deposition can ask any question that is likely to lead to finding evidence that is admissible in court.  That means the person taking the deposition can ask almost anything that is even tangentially relevant to the case.  That covers a lot of ground.

We take depositions here in the Trenches for a few discreet reasons.  We may need information.  We may want to pin the other side down to a position.  We may want to see how you appear when you testify.  We may want to see the weaknesses in your case and in you, so we can use that at trial.  We may want to scare you into settling the case short of trial.  Whatever the reason, whenever I have a client whose deposition is going to be taken, I send them my letter with all the rules of depositions, and I set them out here:

             1. Tell the truth. No fudging, no shading, no exceptions to this rule. Your answers are under an oath to tell the truth.

            2. Your testimony is extremely important to the case. If you are one of the parties to the case, your deposition testimony may be used instead of testimony at trial, or to contradict what you say at trial.  

            3. This is serious business. No chit-chat or small talk with the other lawyer; they are not your friend, even if they seem to be trying to be.   No sarcasm, no facetious remarks. The cold transcribed record will not get the joke  and it will reflect badly on your testimony. 

            4. Listen to the question. Take your time. Make sure you understand before you answer. If there is any part of it you do not understand, say so, and ask the attorney to repeat or rephrase it so you understand what you are answering.

            5. Answer the question – not some other question – just the question you are asked.  Say no more than is necessary to answer the question asked. Do not volunteer extra information or explanations.  If the other attorney wants more information, let him ask follow up questions, do not volunteer. At a deposition you should adopt a defensive posture. This is not your opportunity to tell the whole story; the other attorney doesn't care and if their client is a jerk, they already know it.  Save it for trial.

            6. Do not guess. If you do not know the answer, say so. If you do not remember he answer, say so. It is your job to give the answers you know – not to speculate    It is okay not to know or remember every detail or date. But if you answer, that is the answer that will follow you           throughout this lawsuit. Answer only what you know.

            7. You are the witness – not the lawyer. Do not argue with the lawyer for the other side. Do not object. Do not try to sell the case. Just answer the questions.

            8. Watch out for questions that paraphrase your answers. A lot of times the lawyer  may take your ideas and put them in other words – changing your meaning in   ways that you might not catch at the time. If the lawyer asks if his paraphrasing is accurate, you are entitled to say that you would rather stand on your answer and stick with the way you put it.

            9. Beware of absolutes. Watch out for questions that use the words "always" and "never."

            10. If asked, admit preparing for the deposition. There is nothing wrong in going   over your testimony in advance.

            11. If I object – listen. If you are talking when I object, stop talking at once. An  objection is a danger signal. It says you should put your mouth in the low gear and move your brain into high gear. Even if you think you heard and understood the question before the objection, ask to hear it again.

            12. I am not allowed to interfere with the other lawyer’s questioning of you. This means that we may occasionally object, but we are normally not allowed to say anything, nor do anything to affect your answers.

            13. If you think you have made a mistake in your testimony, let me know before he deposition is over. We will fix it. Mistakes cannot correct themselves. Make sure that you ask for a brief break, and then explain the mistake to me.

            14. If you get tired, ask for break. If you need to go to the bathroom or to get cup of coffee, say so. And if you start to get argumentative or talkative – which is natural when you get tired – I will ask for break myself; in that case, don't argue that you don't need one. 

            15.  This is the MOST IMPORTANT rule.  Practice having your deposition taken.  I know, you know your life better than anyone else, so that seems stupid.  I bet, however, you've never had your deposition taken.  It is an experience for which you need to be prepared as possible.  You will react differently under the pressure of questioning, I guarantee it.  Ask your attorney to arrange for a practice session.  If your attorney can't squeeze one in, ask a good friend to take your financial statement and at least part of your answers to interrogatories or the pleadings and REALLY GRILL YOU on them.  I mean, be really tough.  Why did you say that?  Where did those numbers come from?  Didn't you really just make them up?  Your spouse really didn't do X, so why did you say that? Practice, practice, practice being questioned under pressure.  Tell whoever is helping you to be really tough.  Take it seriously.  Be able to give firm answers.  Don't be wishy washy.

Follow the rules.  This is not a time to freelance.  Here in the Trenches.