A deposition can be an intimidating matter, especially if it is the first time that you are being deposed. Knowing what to expect can help. The purpose of this article is to help the lay reader understand what a deposition is, how it functions and what you might expect at a deposition if you are a deponent. A caveat—even with this information, if you have been served with a deposition subpoena, you should seek the advice of an attorney and engage an attorney to represent you at the deposition.
Civil litigation is a method used to sort out the liability for purported wrongs against people. It is a type of civilized warfare. The people involved are dressed nicely. They often smile at you when asking the most damaging questions. A deponent’s testimony is often critical to the resolution of the matter at hand, but it is important to understand what is being asked of you, and to answer truthfully to the best of your ability within the context of your attorney’s advice and representation of you at the deposition.
Civil litigation involves a lawsuit, the parties to the lawsuit, the court system where the lawsuit is filed, and the evidence upon which the lawsuit is based. As part of the process of civil litigation, the parties to the lawsuit engage in a process called discovery.
Discovery is a process consisting of a number of tools that enable opposing parties to “discover” what evidence supports a plaintiff’s causes of action, or alternatively, what evidence supports a defendant’s defense against those causes of action. A deposition is one such tool.
A deposition is testimony, even though it is taken in a relatively informal setting, usually an attorney’s office. It is a series of questions and answers to those questions. If you are the deponent- the person whose deposition is being taken- your testimony in a deposition is given under oath and has the same force and effect as if you were giving testimony in a court of law.
Because your testimony has the same force and effect as that given within a courtroom, it is important that an attorney help you prepare for a deposition. In preparation, an attorney can help you learn what to expect, what issues may be covered during the deposition, and what might be considered to be “objectionable” questions.
As an attorney, I have taken and defended many depositions. It always amazes me how much deponents are willing to help the deposing attorney. Deponents will often give long rambling answers to simple questions. They will sometimes try to answer questions that are quite complex. They will even try to answer questions that they do not really understand.
If you are the deponent, you can expect your attorney to be present. Opposing counsel will also be present. Opposing counsel will be the person asking questions. Everything said at a deposition will be taken down by a court reporter. Some depositions are videotaped.
Once the deposition is completed, the court reporter will transcribe your testimony into a booklet form. A deponent is then given an opportunity to review their testimony and make changes to it. However, the fact that you, as the deponent, felt the need to make changes to your testimony can be used by opposing counsel at a later trial or other hearing, and this can damage your credibility as a witness. Therefore, it is important that all deponents give their most accurate testimony during their deposition.
Therefore, if you as a deponent do not understand a question, do not answer it. It is better to tell the deposing attorney that you do not understand a question and ask the attorney to rephrase it than to try to answer a question that you do not understand. Likewise, a deponent should answer only the question that is being asked. If the question requires a simple yes or no as a response, that is all that should be given. A deponent should wait until further questions are asked by counsel and should refrain from providing explanations when a simple yes or no will suffice.
Doing this will also give your attorney time to object to a question if the question is legally objectionable. While it is beyond the scope of this article to discuss all of types of objectionable questions, it is important to allow your attorney time to lodge appropriate objections to these questions to preserve those objections for trial later. Therefore, give your attorney time to fully state his or her objection for the record. Your attorney will then tell you whether or not to answer the question.
At all points in the deposition, it is important to do as your attorney instructs you to do. If you need to speak to your attorney, request a short break and speak to your attorney during that break. This will preserve the confidentiality of your conversation.
Some depositions involve the production of documents at the deposition. If yours is such a one, than you can expect that documents will be identified on the record by the deposing attorney and that you will be asked questions regarding those documents. These types of depositions are often longer and more tedious for the deponent.
Depositions can vary quite a bit in length. Simple witness depositions can and often are conducted quickly, sometimes within an hour or less. The more complex the matter being litigated and more central the deponent to the matters being litigated, the longer the deposition. Some depositions take several days to complete. Breaks, including a lunch break are included. If you feel the need to take a break, do not be afraid to say so.
Witness fees for non-party deponents are provided, usually at the deposition. Therefore, if you are neither the plaintiff nor the defendant, there is a small amount of compensation provided to you by the side that has required you to attend. This amount varies somewhat from state to state, but is designed to offset the inconvenience of attending a deposition. If you are a party to the action, no such witness fee is provided.
For some witnesses such as doctors, psychotherapists, and such, the witness fee may be greater, depending upon whether the witness has been named as an expert witness by one side or the other. Likewise, treating physicians, psychotherapists and the like may have special duties to assert the confidentiality of their clients. In all such circumstances, that witness must seek legal advice before contacting the attorney who is requiring their attendance.
Legal advice extremely is important in the preservation of rights at a deposition. Therefore, if you are required to attend a deposition, in all situations, you should seek the advice of counsel. Do so early. Meet with your attorney prior to the deposition if at all possible. And remember to follow the advice given by your attorney both before and during your deposition.
copyright/all rights reserved Audrey Howitt 2014