The prospect of being deposed can be stressful, worrisome, and daunting. Indeed, litigation is inherently stressful, worrisome, and daunting. In the many years we’ve been doing this, we haven’t found a cure for deposition-stress-and-anxiety, but if you understand the basic purposes of the deposition, some of it might be alleviated.
What is the Purpose of a Deposition?
- The deposition is an opportunity for the other side’s lawyer to ask you questions, to find out what you do and do not know, and what you would and would not say if you were called to testify at a trial. The lawyer will want to hear and lock in your testimony so you can’t surprise him at trial.
- It’s also an opportunity for the other side’s lawyer to evaluate how you will come across to a judge or jury deciding the case, and for your own lawyers to do so too.
- Finally, the deposition is an opportunity to evaluate the case more fully. During the deposition, your lawyer may notice strengths or weaknesses in your case that he hasn’t yet seen or considered thoroughly. Or you may remember or say something you haven’t already told your lawyer. New information - or information seen in a different light - will require your lawyer to look at the case anew.
What a Deposition is Not
- The deposition is not an opportunity for you to convince anyone, especially the other lawyer, about how right you are, how great your claim is, or what a wonderful person or skilled professional you are. Nor is it an opportunity for you to tell the other side off (as tempting as it may be).
- Your job is not to try to get a great settlement without a trial. Your job is simply to answer the questions posed and only the questions posed. Don’t imagine that anything you say will “win” your case.
- On the other hand, something you say might “lose” your case, so you’ll want to discuss that with your attorney prior to your deposition.
Five Simple Rules for Preparing for a Deposition
Now that you have a basic understanding of what a deposition is and is not, here are some rules to guide you during your deposition. If you follow these FIVE SIMPLE RULES, you will give a good deposition.
1. Listen to the question - Don’t try to figure out what the opposing lawyer is getting at or what he’s trying to get from you. Just listen to the question.
2. Be sure you understand the question - If you don’t understand the question, your answer should be “I don’t understand the question.” You might even follow up with, “Can you please rephrase the question?” But don’t try to answer the question if you don’t understand it.
3. Think about the question and your answer before you speak - Pause briefly before you answer the question. Make sure you understand it in your mind, and make sure you have a ready response. Don’t let what’s in your head fly out of your mouth without passing a checkpoint.
4. Express the answer in the shortest and clearest manner possible - Do not wander into details the lawyer didn’t ask about. If he asks “where were you going?” your answer should not include a list of things you did that day and the reason you were going where you were going. Rather, your answer should be, “I was on my way to work.” PERIOD.
5.TELL THE TRUTH
6. TELL THE TRUTH
7. TELL THE TRUTH
Apart from being the right thing to do, telling the truth makes following every other rule easier, and ensures your integrity and credibility, which are critical in any contested case. “Do what is right, let the consequence follow!”