What is a Deposition, Mediation, Trial and How the Differences Impact Your Legal Case

Being a party to a lawsuit is perhaps one of the most stressful and confusing events a person will face in life.  Often you will be faced with having to pay out potential large dollar amounts, incurring criminal penalties or other serious repercussions that have major impacts on your day to day life.  Even when represented by legal counsel you will encounter terms, proceedings, and requests phrased in unfamiliar or intimidating legal jargon.  Not having a thorough understanding of these various proceedings and official labels can add anxiety and uncertainty to an already complicated situation.  Here we unwrap and explain the most common legal proceedings and how they each affect your obligations differently when involved in a legal proceeding.

If you watch cable legal dramas, you may think that the only type of information presented at trial comes courtesy of a briefcase, file folder or police evidence bag.  In reality, the evidence presented at trial can come from a variety of sources, including proceedings that occur before trial called depositions.  A person can request a deposition to take an official, on the record statement from a witness or party to civil litigation.  These statements can be used at trial.  A deposition is sworn testimony.  A court reporter will be present taking down everything you say.  As a rule of thumb, don’t answer anything other than what is asked.  A deposition is like a conversation, but in many ways it is not a conversation.
The statements made during a deposition are instead given the same weight as a person’s in-person testimony in front of a jury.  Depositions can help flush out issues, commit the deponent—the person speaking—to certain positions, and clear up questions.  Participants of a deposition may have a personal injury lawyer on present.  The lawyer will object when appropriate but generally is not allowed to speak during the deposition. Refusing to participate in a deposition can lead to a person being sanctioned, forced to attend, or paying the other side’s legal and court fees.  Generally, depositions can last from as short as 5 minutes to as long as 7 hours, sometimes more if the court allows for it.
You must prepare for your deposition. Your lawyer should schedule a time to help you prepare.  Generally, what you and your lawyer discuss is privileged however and the other lawyer cannot ask you what you talked about.  This is called the “attorney-client privilege”.

In some legal disputes, the parties may be able to reach an agreement without the need for a trial.  Judges will often assess the specific case and the positions of the individual participants and order the parties to participate in traditional mediation.  Other times parties may willingly agree or ask the other side to attempt mediation before progressing to trial.
Traditional mediation involves both the plaintiff and defendant attending the mediation to present their facts and arguments to the other side in the presence of a neutral, third party mediator.  This mediator will not decide the case but instead attempts to work with the parties to help them resolve their differences and come to a mutual understanding.  The compromise is documented in a mediation agreement which, when signed by the parties, binds each side to a specific result.
Mediation may not work for all cases and has the best results when the parties are open-minded and willing to listen to the other side’s point of view.  Participants bring their lawyers and the lawyers make the arguments.  Sometimes an expert or other witnesses may attend as well.  Mediations cost much less than trials and can often help reach a better resolution for all involved parties.  When mediation begins, the mediator will separate the parties (and their lawyers) to separate rooms and shuttle offers and ideas back and forth until a resolution is reached.  Everything discussed in mediation is confidential, though a mediator may be forced under rare circumstances to disclose.  Generally, however, all settlement discussions are confidential and cannot be disclosed to a jury if the mediation proves unsuccessful.

The trial phase is the culminating event of any legal proceeding.  If mediation or other alternative dispute resolution fails to help the participants reach a consensus on their dispute, the case will proceed to trial.  During the trial, both sides present the evidence collected beforehand to a panel of jurors or legal judge who will rule based on the facts presented.  There is no “trial by ambush” like you see in the movies.  Each lawyer must disclose the evidence to the other side in what is called “discovery”.  Generally, discovery lasts for 6 months from the date that the defendant’s Answer (response) is filed.  Discovery can be extended or shortened either by agreement of the lawyers or by a court order.
Depending on the issues at hand, trials can span days or even weeks.  At the end of the case, a verdict will be made for one or the other party, and the judge will “enter” the verdict.  Participants at trial are typically represented by one or more attorneys but can also represent themselves.  The legal term for self-representation at trial is “Pro Se.”
Whichever legal proceeding you may be facing, being armed with the knowledge of the process can provide comfort when faced with a lawsuit.  If you are involved in a lawsuit, you are entitled to consult with an attorney who has specialized knowledge of the processes and procedures you will be facing.

What Not to Do in a Deposition

A deposition is a recorded statement under oath by a witness in a legal proceeding in response to questions asked by an attorney involved in the proceeding. The witness answers questions posed by the attorney involved in the legal proceeding.

The questions are posed by the attorney as part of the discovery phase of litigation. Depositions allow one side to find out what the witness knows about the case. Questions and answers are recorded by a stenographer to preserve the witness’ testimony in case the witness is unable to appear in court or tries to change their testimony during the trial phase.

If you are called on to participate in a deposition, here are some hints to help you in this process. During your deposition,

    1. Do not lie. You are under oath to tell the truth no matter what. Assume the questioner already knows the answer. A forthright answer may be damaging, but is far less damaging than an exposed lie. Answer only with facts and speak clearly. If you have an attorney, trust them to protect your rights during the deposition.
    2. Do not testify about a document without reading it first. If the examiner does not show it to you, refuse to answer any questions about it until he or she does show you. If you are asked to identify a document, be satisfied to its authenticity before replying.
    3. Do not attempt to expand or explain the answer. Answer only what is asked and within your personal knowledge. If there is a silence after your answer and the examiner looks as if he is expecting more, remain silent. Do not fill the void with more words. Do not speak until another question is asked.
    4. Do not offer opinions about people. Do not quote conversations if they are paraphrased. Avoid any attempts at levity or ethnic derogatory statements. And, there is no “off the record.” Additional commenting can lose the case by disclosing privileged information.
    5. Do not think under any circumstances that the examiner is your friend. His job is to discredit any testimony unfavorable to his client. He may try to set you up by restating testimony in a negative light and overstate any facts that are not entirely true. Do not be afraid to say “I did not say that.”
    6. Do not answer any ambiguous or compound questions or any you do not understand or a question with two possible answers. Politely state you do not understand the question, and ask the questioner to rephrase until the question is clear. But do not help him or her phrase the question.
    7. Do not answer questions with unclear or misleading statements or those containing half truths or misstatements. The examiner may try to lead you to agree to a misleading or untrue statement or agree to things you did not say. Do not be afraid to say “I did not say that.”
    8. Do not go beyond your true recollection. Do not guess. If you cannot recall a fact, say “I don’t remember.” If you need to refer to a document, say so but do not offer to produce it. Do not suggest the existence of documents the examiner did not know existed.
    9. Do not answer any question too quickly. Pause and analyze each question, repeating it in your mind and formulating an honest answer before speaking. This will set the tempo of the deposition and should hold off examiner pressure. If the examiner complains on the record that you are taking too long, reply that you want to be sure your answer is accurate. The written transcript will not reflect how long you took. Remain businesslike even if the examiner makes you angry.

If you choose to have a personal injury lawyer Minneapolis MN relies on represent you, he or she will be present at the deposition to ensure that only proper questions are asked and that do not violate privileged information.

Thanks to our friends and contributors from Johnston Martineau PLLP for their insight into the dos and don’ts of a deposition.