Monday, July 1, 2013

Depositions: How They Work and Some Do's and Don'ts


     In a deposition, you, the deponent, answer under oath questions asked of you by a lawyer, the examiner, usually relating to a pending civil lawsuit.  For example, maybe you witnessed a car accident, or worked with someone suing an employer, or have knowledge about a business dispute.  You may be required to share what you know with one side or the other in a related lawsuit.  Same goes if you are a party to a lawsuit.  Depositions can last hours or days., depending on the issues.  How does it work?
     An officially recognized court reporter is present at the office or conference room to record your answers and upon request (and payment of a fee) produce a written transcript of your testimony for use by others later in the case including at trial.  Most often deposition transcripts are used at trial to try to show you are fabricating or mistaken about your testimony, even if neither is the case.  They are used in pre-trial matters like motions to help argue for or against a point of fact or law.  Accordingly, the goal of the deponent should be truthfully to answer questions (without giving unnecessary information).  Here are some things you should and should not do:

You should:

- answer truthfully

- speak slowly and clearly

- leave room for nervous omissions, mistakes or faulty memory where appropriate, such as "at this time," "right now," "as I recall," "off the top of my head," "I do not remember all the details right now," and the like (especially with questions asking you to list or detail something)

- answer verbally (so the reporter can hear and take down your answer)

- let the examiner finish his/her question before answering

- repeat the question in your mind before answering

- answer "I don't recall," "I don't remember," or "I don't know" if that is the case, and leave it at that

- take a break (while a question is not pending) if you wish to use the restroom, compose your thoughts, talk to your lawyer, etc.

- review interrogatory and other sworn or recorded responses or statements already provided by you before the deposition.

You should not:

- repeat yourself

- explain an answer unless asked to do so

- fill in “awkward silences” with unnecessary testimony

-volunteer anything, or offer to get or look for anything or talk to any person.  Do not refer to or mention anything or any person you do not wish to produce or identify unless required

- bring anything to the deposition unless you clear it with your lawyer first

- anticipate the question, or what you think might be the "real" question

- give non-verbal cues (fidgeting, frowns, grimaces, smiles)

- talk about anything you and your lawyer have discussed

- ramble on or add unnecessary afterthoughts  (and most are)

- argue, be cute or tricky, use profanity or sarcasm

- answer a "yes" or "no" question any other way

- apologize for an honest answer.  The truth never changes, so stick to it.
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