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GIVING DEPOSITION TESTIMONY


Introduction

    You have just received notice that your "deposition" has been set by the other side in this lawsuit. You may be asking yourself: "What is a deposition? What is its significance to my case? What should I do?" This article is designed to address those concerns.


What is a Deposition?

    Each side to a lawsuit has a right to have the opposing party examined regarding the facts and issues involved in a case. You and your attorneys have a right to take the other party's deposition also. And, your opponent has a right to take your deposition. In essence, a deposition is a legal proceeding between you, your attorney and the opposing attorneys during which the opposing attorneys will ask you questions to obtain your testimony under oath with a Court Reported recording all that is said. The person suing you has the right to be there, but they rarely come. In any case, only the attorneys will be allowed to ask you questions. Before you are asked any questions, the Court Reporter will administer an oath to you. This is an oath to tell the truth, the same oath you would be given by a Judge if you were testifying in a Court of law. Taking the oath carries with it penalties for perjury if you knowingly testify to something that is not true. Failure to remember is not perjury. After you have sworn to tell the truth, the opposing attorney will begin asking you questions. The questions and your answers will be recorded by the Court Reporter, so speak clearly and audibly. Do not say "uh huh". Later, a transcript (booklet) with all the questions and answers will be prepared and you will be given the opportunity to make corrections and changes. But, if you change the substance of an answer (i.e., change "yes" to "no", or "I don't know" to a more specific answer) the opposing attorney will have a right to comment on the change and that may prove to be embarrassing to your credibility and be damaging to your case. So, listen to each question very carefully before answering them and be sure that you can live with your answer.


DO NOT ANSWER ANY QUESTION YOU DO NOT UNDERSTAND

    If you answer a question without indicating that you don't understand it, the opposing attorney will assume that you understood the question and later comment on this should you change your answer when you review the transcript. If you have any confusion about a question make sure the opposing attorney is made aware of it. Of course, you can always request a break in the deposition to confer with your attorney. Although no judge is present, your deposition is a very solemn procedure and there is little difference between the testimony obtained at a deposition and testimony elicited in a Court Trial.


WHAT IS THE SIGNIFICANCE OF THE DEPOSITION TO YOUR CASE?

    The opposing party has scheduled your deposition for three reasons. First, the opposing attorney wants to find out what facts you know about the issues in the lawsuit. In other words, they are interested in what your version of the incident is now and what it is going to be at the time of trial. Second, they want to pin you down to a specific version so that you will have to tell the same version at trial. Third, and this is perhaps the most important reason, they hope to catch you making an inconsistent statement because if they find any inconsistency, they can later argue to the jury at trial that you are not a truthful person and therefore NONE of your testimony should be believed on any of the factual issues, even the critical ones.

POTENTIAL PITFALLS YOU MUST AVOID

    Because of the significance of your deposition should be mindful of the following advice:

  1. 1.Always remember that you are only required to give the facts as you know them. You do not have to give opinions. Generally speaking, if you are asked a question which calls for your opinion, your attorney will object to the question. This is to "protect the record" so your attorney can raise the objection at Trial. However, if your attorney then tells you to go ahead and answer the question, you are free to do so. If you do have an opinion you may give it. If your attorney instructs you NOT to answer the question then DO NOT, no matter how threatening or belligerent the opposing attorney may act. It usually just that, an act.

  2. 2.Never state a fact unless you are CERTAIN of that fact. Quite frequently you will be asked a question by an attorney and feel that you should know the answer. Therefore, you are tempted to make something up, or guess. This can lead to very negative consequences! If you do not know the answer to a question, just say you don't know or don't remember.

  3. 3.KEEP IT SIMPLE. Never attempt to explain or justify your answer. Answer the question with as few words possible. If you ramble and go into great detail, this "free information" will only give the opposing attorney more ammunition. So, don't volunteer any information that wasn't specifically asked for. You only need give the facts as you know them and no more. You need not apologize or attempt to justify these facts, and any attempt at such would make it appear as if you doubt the accuracy of your own testimony.

  4. 4.DO NOT REFER TO ANY NOTES OR BRING ANY DOCUMENTS WITH YOU TO THE DEPOSITION UNLESS YOU ARE SPECIFICALLY REQUESTED TO BY YOUR ATTORNEY. You are only to give the information that you have readily at hand. If you do refer to something you wrote down, the opposing attorney will have a right to see it and this could lead to very embarrassing consequences. Do not turn to another witness, if one should be present, and ask for the information. If you know an answer to a question at the time it is being asked, then you should answer it. Do not agree to look anything up in the future and then supplement your answer.

  5. 5.DO NOT reach in your pocket for any documents unless your attorney asks you to. If the opposing counsel is interested in obtaining any documents from you, there are other legal procedures with which to obtain them. LEAVE YOUR DRIVER'S LICENSE IN YOUR CAR AND DO NOT BRING IT TO THE DEPOSITION WITH YOU.

  6. 6.Do not allow the opposing attorney to make you feel angry or excited. This destroys the effect of your testimony and may cause you to say things that you will later regret. Sometimes attorneys make a conscious effort to get a deponent excited hoping for just such a result. They will try to rush you. TAKE YOUR TIME. They will try to put words in your mouth. TELL THEM THAT'S WHAT THEY'RE DOING. But, under no circumstances should you argue with the opposing attorney. Give the information in the same tone of voice and manner that you would in answer to your own attorney's questions. The mere fact that you get emotional about a certain point could be to your opponent's advantage in a lawsuit.

  7. 7.If your attorney begins to speak, stop whatever answer you may be giving and allow him or her to speak. If an objection is being made to a question that has been asked, do not answer until your attorney advises you to go ahead and complete your answer. If your attorney tells you not to answer a question, then refuse to do so.

  8. 8.Take your time in answering a question. There is no time clock. The deposition transcript will not show how long it took for you to respond. Consider your answer carefully and make sure it is something you can "live with". Don't blurt out answers. Since you are under oath, what you say is literally "written in stone" and will be very hard to back away from.

  9. 9.ALWAYS TELL THE TRUTH. The truth will never really hurt a litigant. A lawyer can explain the truth, but no lawyer will be successful explaining why a client committed perjury.

  10. 10.Never joke in a deposition. The opposing attorney may try to get you to lighten up by joking with you and seeming friendly. This is a ploy to "get you to talk" more. The humor will not be apparent on a cold transcript. A person reading the transcript may also believe that you do not take the lawsuit seriously.

  11. 11.DO NOT VOLUNTEER ANY INFORMATION THAT IS NOT REQUESTED. For example, suppose you are asked the following question: "Where was the other car when you first saw it." A proper answer is to state where the other car was when you first saw it, and nothing more. An IMPROPER answer is: "I was looking out of the window, then my passenger told me to watch out. I stepped on the brakes a fast as I could because I didn't want to get in an accident." This is a bad answer because you just gave the opposing attorney three things he did not ask: (1) where you were looking; 2) what you were thinking; and (3) the speed of your reaction. Further, it does not answer the original question. Last, it is an admission of inattentiveness, which is what the other side needs to win.

  12. 12.Be very careful with estimates of time, speed and distance. Most accidents happen in a "couple" of seconds. Don't say that you first saw the pedestrian start walking across the cross-walk a "minute" before the accident. There is a HUGE difference between a minute and a second. If you had more than a "couple of seconds" to anticipate an accident, the accident, it might be argued that the accident was your fault because it could have been easily avoided.

  13. 13.If you can't estimate distance well, just say so. Very few people can. Don't let the opposing attorney try to pin you down to a specific figure. Give a RANGE, like "10 to 20 feet" rather than "12 feet", unless you specifically measured something. It is more credible to give a range than a precise figure. You can always use the length of your car, or a portion (like half a car length), to estimate a distance. The same applies to speed. Give a range. Don't say "I was going 22 miles per hour", but "I was going somewhere between 20 to 25" miles per hour. Be aware of the speed limit in the area where the accident occurred. You do not want to estimate a speed more than the speed limit.

  14. 14.After your deposition is over, do not chat with the opponent or their attorneys. Remember, the other attorney is your legal enemy. Do not let a friendly manner cause you to drop your guard and become chatty.


A Final Word

    The information contained in this article is not intended to be a complete discussion of all the issues related to the areas discussed. Your personal situation may be different and you should seek the legal advice of an attorney regarding specific information. Ken Koury is experienced in representing clients in hundreds of deposition proceedings in a variety of legal matters.


Copyright 1995-2012 by Attorney Ken Koury.