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,
- 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.
- 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.
- 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.
- 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 Do not quote conversations if they are paraphrased.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.
- 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.”
- 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.
- 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.”
- 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.
- 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.