7 Tips for Giving a Deposition
You just received a subpoena telling you that you must give a deposition in a court case. Now what? This article details the process of giving a deposition and includes tips for making it through the process unscathed.
You may be representing your business or the company you work for in this matter, so be sure to let someone in charge know about the deposition.
What is a deposition?
A deposition is the giving of evidence in a question and answer format.
As part of the process of litigation (trying a case in court), depositions are used to gather evidence before a trial.
Depositions are similar to testimony in court. In both cases, you must be sworn in and promise to tell "the truth, the whole truth, and nothing but the truth."
Why would you need to give a deposition?
Depositions are a big part of the litigation process, specifically part of the discovery process, the pre-trial part of the process. The purpose of a deposition is to get information from potential witnesses. Depositions are recorded in case there is some reason why a witness might not be able to testify at the trial.
Before the trial, both sides gather information, which must be shared between them. The prosecution (the plaintiff in a civil case) and defense both need to know what witnesses will say before the trial, and what all the evidence is, so they can prepare their cases.
What happens in a deposition?
Let's say you must give a deposition about a case your company is involved in. You may be called by either the prosecution or the defense, depending on the case.
You will probably be required to go to a law office conference room. There will be several attorneys, both prosecution, and defense. Both sides may ask you questions. You can use notes if you need them. Your answers will be recorded by a transcriptionist or by a recording, or both.
Do you need an attorney for a deposition?
You are always allowed to have your own attorney present at a deposition, as you would if you were testifying in court or if you were one of the litigants (defendant or prosecution). If you are just a witness, and the case is fairly simple, you may decide you don't need an attorney. It's really up to you.
In some trials, you may be asked to give a deposition as a defendant or plaintiff, as, for example in a business dispute. In this case, you would certainly want an attorney with you when you are giving a deposition.
If you don't have an attorney with you while you are giving a deposition, you may feel you are at a disadvantage. You might also have some legal issues that you are worried about exposing while you are giving a deposition. In these cases, having an attorney is a good idea. You can discuss questions with your attorney before you answer, or your attorney can attempt to stop a question (it doesn't always work).
Now that you know a little about the discovery process and depositions, here are some tips for helping you get through the deposition more easily:
Spend some time before the deposition date thinking about what happened. You may want to make some notes, to jog your memory. You can bring the notes with you for when you are giving your deposition.
If you want your testimony to be taken seriously, you must dress professionally. You don't have to wear a suit or a dress, but no jeans, cut-offs, tank tops. Wear a shirt rather than a t-shirt. Don't overdo the makeup. Being professional also means sitting up straight, looking people in the eye, and being pleasant but not silly.
Be Aware of Protocol
While a deposition is a little more relaxed than a courtroom trial, there are protocols that need to be followed.
For example, don't speak unless you are spoken to and address people by their full names "Miss So and so" not "Sally." You will be reminded of this before the deposition begins.
Tell the Truth
When you give a deposition, you are under oath, just as if you were in court. That is, you will be asked to swear that your testimony is "the truth, the whole truth, and nothing but the truth."
An important part of telling the truth is knowing when to quit. Yes, you want to tell the "whole truth." But just tell the truth, then stop. Don't volunteer information. Answer the question truthfully. Then wait for the next question. If the attorney wants you to give more information, you can do it then.
For example, if you are asked if you were with someone at a specific place and time, answer that question. Don't go on to tell what you talked about or what the person was wearing, or his or her attitude. If the attorney wants you to give that information, you'll get another question.
Take Your Time
It's tempting to answer quickly when someone asks a question but think about your answer before you speak. If you are given documents to look at, or photos to respond to, look at them carefully first. Some business documents (financial statements, for example) can be lengthy and complicated. You may not have seen them ahead of time.
Part of taking your time is stopping to listen to what the questioner is asking. Don't rush into an answer based on an assumption of what you think the questioner is asking. You can stop and think about the question and ask for clarification before you answer. There's no rush.
You may be asked the same question multiple times in different variations. The opposing attorney may be trying to catch you in an inconsistency. Yes, they can be tricky, but it's perfectly legal.
As Mark Twain said, "If you tell the truth, you won't have to remember anything."
Don't Be Afraid to Say "I Don't Know."
It's better to admit you don't know the answer than to guess. We all tend to want to please others by giving information, but don't answer if you aren't sure you know. For example, if the questioner asks, "What color jacket was the person wearing?" don't say, "Well, I think it was blue." It's better to say, "It was dark, but I don't know the exact color."
A Deposition Isn't Always the End
One last note: Giving a deposition may not be the end of your responsibilities in a trial. Even with a deposition, you may still be called as a witness — for the prosecution or defense. In this case, you will need to be sure you give the same answers as in your deposition unless you remembered something new or something has changed.