Your lawyer’s office just notified you that you have to give a deposition for your lawsuit. No matter how you find out – by phone call or formal written notice – learning that you have to give a deposition is enough to make anyone’s heart skip a beat. Knowing more about depositions, along with some simple do’s and don’ts, can help ease your anxiety. Talk with your lawyer about the specifics of your case, but read on for some help with the basics: what a deposition is, why you have to give one, and what you should say and do in your deposition.
What is a deposition?
A deposition is a formal question and answer session conducted before trial, about facts and opinions involved in a lawsuit. If you are the person giving the answers, you are called the “deponent.” Lawyers for the other parties in the case will ask the questions. You will be under oath, just like in court. Questions and answers are recorded word for word by a court reporter, and sometimes, on video.
Why do they want to take my deposition?
Lawyers take depositions for three basic reasons:
1. Gathering Information
Before taking a deposition, both sides in a lawsuit will gather as much information about the case as possible. For example, in a personal injury case involving a car crash, the lawyers will already have police reports, insurance records, medical and employment records, and witness statements. These records, however, don’t tell the whole story. The lawyers asking the questions want to fill in gaps in the written record, and more importantly, discover new information that might be important to the case. Their questions will be designed to get this information.
2. Identifying Inconsistencies and Nailing Down Facts
The lawyers want to learn if the story you will tell in court is consistent with the written records they already have. If your story is consistent, it makes your claims look legitimate and helps your case. An inconsistent story isn’t reliable and hurts your case. For example, if a person brings a lawsuit for injuries she got in a car crash, and she testifies in her deposition that she hurt her shoulder in the wreck, her case is stronger if her medical records show she reported shoulder pain in the emergency room right after the crash. On the other hand, if she complains of excruciating shoulder pain in her deposition and says it’s related to the wreck, but her records show no reports of shoulder pain until after she had a work injury six months after the crash, her claim is weaker.
The lawyers also want to make sure the story told in the deposition is the same one they will hear at trial. Because you are under oath when you give a deposition, you are essentially saying, “I swear it is the truth that . . .” before every answer you give. If you change your answer to the same question later on, the lawyer will be sure to say, “When you gave your deposition, you swore your answer was the truth. Now your answer is different. Why should we believe what you say when your ‘truthful’ answer changes over time?” Stories that change over time are perceived as unreliable and untruthful.
3. Sizing up the Witness
Watching how a witness listens, answers questions, and behaves under the pressure of a deposition tells the lawyers in the case whether a witness is likeable and believable. A likeable, believable witness adds value to a case, but an unpleasant, untrustworthy witness makes a case harder to win.
Top Five Tips for Giving a Good Deposition
Now that you know why you’re giving a deposition, how can you make sure you do it well? Talk to your lawyer about what to expect in your particular case, but keep these five tips in mind.
1. Listen to the question and make sure you understand it before you answer.
Remember, you are saying, “I swear it is the truth that . . .” before every answer you give. If you don’t understand what the lawyer is asking (which it happens a lot), you can say, “I’m not sure I understand what you’re asking. Could you ask it a different way?”
2. Don’t guess at answers.
If “I don’t know” or “I don’t remember” is the truth, it is an acceptable answer. For example, if you are asked how fast the other car was going when it hit yours, and you don’t know for sure, you can say, “I don’t know.” It’s the truth.
3. Don’t volunteer information.
The lawyer’s job is to ask the questions. Your job is to answer the question that is asked, not a different question. The lawyer wants to find out information that helps her case and hurts yours. So, if the lawyer asks, “Have you ever been hurt on the job?” and you have not been hurt on the job, your answer should be, “No.” Your answer should not be, “No, but I did hurt myself playing basketball at the Y after work.”
4. Look the part.
Dress neatly and conservatively for your deposition. You don’t have to “dress up” unless that’s normal and comfortable for you, but you should look like a dependable, trustworthy person, even to the most judgmental person you can imagine.
5. Be pleasant, even when it’s difficult.
Sometimes, lawyers will try to rattle a witness. If you remain calm and collected in your deposition, the lawyer will assume you will be calm and collected at trial. That helps your case. Ask to take a break if you need to collect yourself.
Giving a deposition is stressful, but it is an important part of your case, and one you can manage. Good luck.
Mary Taylor Lokensgard is a recovering attorney with over 15 years of private practice experience in plaintiff’s personal injury litigation, estate planning, and elder law. She is currently working as an independent writer for leading law firms like The Clark Law Office, theclarklawoffice.com, which represents injured people in Michigan and other states.