Deposition Instructions
Please review these instructions carefully before your deposition. If you have questions, write them down and discuss them with your attorney before the deposition.
What Is a Deposition?
A deposition is your testimony under oath. You will be asked questions by the opposing attorney and, in most cases, the proceedings and all questions and answers will be recorded by an official court reporter.
The judge will not be present. The deposition will probably be held in one of the attorneys' offices.
There is little difference between testimony at a deposition and testimony in court, except that the judge presides in the courtroom and makes immediate rulings on matters as they arise.
The Purposes of a Deposition
The opposing side is taking your deposition for a number of reasons:
They want to find out what facts you have in your actual knowledge and possession regarding the issues in the case.
They want to pin you down to a specific story so you will have to tell the same story at the final hearing. The deposition will let them know in advance what your story is going to be.
They hope to catch you in a lie so they can show at the final hearing that you are not a truthful person and, therefore, your testimony should not be believed on any points, particularly the crucial ones.
They will be evaluating the case for settlement purposes. This will be their opportunity to see what kind of an impression you make as a witness, hear your side of the issues, and evaluate how strong their case is compared to yours. Many cases settle once depositions have been taken.
The taking of a deposition offers an opportunity for both attorneys to discuss the possibility of settlement. This is particularly true because both attorneys are knowledgeable about their clients' cases by the time a deposition occurs, and everyone is at the same location. There is no better time to begin serious settlement discussions.
The opposing side has every right to take your deposition for these legitimate purposes. Correspondingly, you have the same right to take the depositions of the opposing party and all witnesses.
Pitfalls to Avoid
Give Facts — Not Opinions
Always remember that, either as a party or a witness, you do not have any purpose other than to give the facts as you know them. You must give the facts if you have them.
You do not have to give opinions and should never do so. Your attorney will generally object to any questions that call for your opinion. Follow your attorney's advice on whether or not to answer a question.
It's OK to Say “I Don't Know”
Never state facts you do not know. You may be asked a question by the attorney to which you feel you should know the answer. This is a mistake.
If you feel you do not know the answer to a question, say so, even though you may appear ignorant or evasive by stating you do not know.
A guess or an estimate for an answer is usually the wrong answer and one from which the opponent can show you either do not know what you are talking about or imply you are deliberately not stating the truth.
The attorney is generally in a position to know what the answer should have been. It may very well be that the attorney asked the question because he or she knew you would not know the answer and felt you would be compelled to guess.
Don't Explain Your Answer
Never explain or justify your answer. You are there to give the facts as you know them and not to apologize or attempt to justify those facts.
Any attempt to do so makes it appear you doubt the accuracy or authenticity of your own testimony.
Don't Suggest You Have More Information Available
You are only to give the information that you have readily available. If you do not know certain information, do not try to give it.
Do not turn to your attorney or other witnesses and ask for the information. Do not promise to get information you do not have readily at hand.
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 up anything in the future to supplement the answer you are giving.
Don't Reach in Your Pockets
Do not, without your attorney's advice, reach in your pocket for any kind of document or information.
A deposition is taken for the purpose of eliciting facts that you know and have in your mind and not for the production of documents. There are other legal procedures for the opposing side to obtain documents they may want.
Do not ask your attorney to produce anything from their file.
Don't Get Angry or Upset
Do not let the opposing attorney get you angry or upset. This destroys the effect of your testimony, and you may say things that can be used to your disadvantage later.
Under no circumstances should you argue with the opposing attorney. Only give the information you have—this is all the attorney is entitled to.
Respond to the questions in the same tone of voice and manner you would in answering your own attorney's questions. The mere fact that you get emotional about certain matters could be used to your opponent's advantage.
Stop Answering When Your Attorney Talks
If your attorney begins to speak, stop whatever answer you may be giving and allow them to make their statement.
If your attorney is making an objection to the question being asked, do not answer until they, after making their objection, advise you to go ahead and complete your answer.
Refuse to answer a question if your attorney tells you not to answer.
Take Your Time
Take your time in answering questions. The transcript of your deposition does not show how long you took considering your answer.
It is advisable to answer all questions in a direct and straightforward manner.
Tell the Truth
Telling the truth during a deposition or on the witness stand never hurt a litigant.
An attorney may explain away the truth but cannot explain the client's lies or concealment of the truth.
Never Joke
Never joke in a deposition. The humor will not be apparent in the deposition transcript and can make you seem crude or cavalier about the truth.
Don't Volunteer
Do not volunteer any facts not specifically requested by a question. Such information cannot help, but it can—and often does—hinder your case.
Don't Chat
Do not chat with the opponent or the attorney after the deposition is over. Remember, they are your legal enemies.
Do not let friendly manners cause you to drop your guard and become chatty.
Don't Try to Outsmart the Other Attorney
Do not try to figure out beforehand whether or not a truthful answer will help or hinder your case. Answer truthfully. Don't play games.
Your attorney can deal with the truth effectively, but is handicapped when you answer any other way.
If you are worried about an answer you may need to give, talk to your attorney before the deposition.
If a surprise question rattles you, ask for a break and talk with your attorney about your concerns.
Please write down any questions you may have after reading all of these suggestions and discuss them with your attorney prior to the deposition.
Follow these suggestions and your deposition should go smoothly.