What is a Deposition?
Other than the trial in your personal injury case – should one actually take place – your deposition is the most important event you will participate in, and one in which you alone can influence the final outcome of your case. This is the first moment the opposing attorney gets to meet you.
The deposition is usually held in the attorney’s office, in a conference room, but your attorney will be there to represent you. Sometimes it will be held at a court reporting company’s conference room. The opposing side, or anyone you have sued, may also be present. The only people in the deposition you should look at are the attorney asking the questions, the court reporter and your attorney.
Excellent client testimony is a continuing trademark of a good attorney working with a credible client. Just pay close attention to your attorney’s written and verbal instructions and you can expect a successful deposition. Here are some basic rules:
Tell the truth
Honesty is always the best policy during a deposition. The entire judicial process is a search for the truth. If a witness is lying about anything, it will probably be exposed, and the rest of what the witness says can be hidden behind the exposed lie. An outright lie can lose the best case. Testify from your memory, and avoid a simple “yes” or “no” answer if a brief explanation is necessary. Remember that the defense attorney will try to take a particular word or phrase out of context to use it against you. Listen very carefully to the words used in each question.
Answer only the question that is asked
This is very difficult because we all have a tendency to jump ahead and tell a story. Keep your answer as short as possible.
Do not volunteer information
Anytime you give a long explanation instead of a short answer, you have opened many areas for possible questions. The deposition will take longer, and you have given the opposing side a better look at your evidence, and at you.
Answer every question thoroughly
This may seem to contradict the previous rule, but it does not. A complete answer is given to only the question asked. All relevant details should be given. If not, you will face a serious problem. Later on, probably at trial, you will be asked the same question as the defense attorney works from your earlier deposition transcript.
Do not answer in absolutes
Frequently the defense attorney will ask what I call a “clean-up” question such as, “ Is that all?” Sometimes it’s phrased as, “Have you told me everything about this?” Be careful. Do not say yes. Do not say, “That’s all.” If you say “yes,” you are held to that exact answer, and at trial if you remember anything new you will be called a liar because you said that’s all when asked the question at deposition earlier. Just leave the door open by saying, “That’s all I can recall at this time.”
Try to answer with a full sentence
For example, if you are asked, “Did you ever steal money?” try to answer “I have never stolen any money.” This is better than a plain “no.”
Pause and think about the question you are asked
Do not take long, just pause and think. Give your lawyer time to object, if they find it necessary.
Support your conclusions with descriptions
You can do it. You were there. You are the best person to describe what happened and what it felt like.
Use approximations rather than exact measurements
Exact measurements are difficult to know. The conference room width or table length can be used as a reference to estimate a distance.
Do not guess
If you do not know the answer, do not guess at one. If you are giving an estimate make sure you say it is an estimate.
Always be polite and positive while testifying. Do not let bullying tactics have any effect on you. And do not try to intimidate the opposing attorney with argument or facial expressions. Any time you feel anxious or too nervous and stressed, ask to take a break. A short break every hour is normal for depositions.
Wait for a complete question
Do not interrupt the opposing attorney. Wait until the question is completed before you answer.
Give a complete answer
If the opposing attorney interrupts you before your answer is finished, let him ask the next question, then tell him your prior answer was not finished. Do it politely.
Make sure you really understand the question
There will always be a few questions you do not understand, or you may not know how to answer. When you are asked a question that has a phrase or word you are not real familiar with, tell the attorney you do not understand the question.
No matter what happens or how you feel inside, be polite. It will not hurt to say “no sir” instead of just “no.” Or you can say “no ma’am” instead of just “no.” Just like with the other instructions, remember not to overdo it. It can become obnoxious if you “sir” and “ma’am” too much.
Maintain eye contact and try not to fidget
Look at the attorney questioning you, or look at the jury if it’s during trial. Keep your head up. Do not twist your chair from side to side. Do not fold your arms across your chest. That makes you look defensive. Speak out clearly, speaking as you would to a group of interested friends.
Dress in something comfortable, not too dressed up, and not too casual. Clean, neat casual clothes are fine.
These tips appear courtesy of an accomplished California trial attorney and friend David Miller. The strategies and instructions contained in this chapter have been developed over the course of David’s twenty-year career fighting in court for the rights of his clients.