Deposition Tips: The Top Five Rules
What is a Deposition and How Do I Prepare?
In a lawsuit, all named parties have the right to conduct “discovery,” or a formal investigation, to find out more about the case. Depositions are one tool of discovery. They involve taking the sworn testimony of a party or a witness and are recorded stenographically, and sometimes, by video. It is similar to testifying in court, but a little less formal. No judge or jury is present -- only the witness, the parties, and their attorneys.
Below are the top 5 rules to guide you during a deposition:
- 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.
- Be sure you understand the question. If you don’t understand, your answer should be “I don’t understand the question; can you please rephrase it.”
- Think about the answer. Pause briefly before you answer the question.
- 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.” On the other hand, if there are details the lawyer hasn’t asked about, but that would support your case, feel free to share those details.
- Tell the truth. Telling the truth includes telling the whole truth. In other words, don’t be afraid to volunteer information if it pertains to the question. You don’t have to just say “yes” or “no” to the opposing attorney’s question, even if he’s asking you to just answer yes or no. You don’t have to accept his choice of words, his premise, or his framework. You can use your own words and you can explain why it isn’t a simple “yes” or “no” answer. Give your best and most complete answer at the first opportunity. You don’t need to wait for follow-up questions or hope your attorney will clean up your response later. When your memory is a little fuzzy, answer in a way that reflects that instead of saying “I don’t remember.” Although you should never guess, you can and should offer the information you do remember. For instance, you can say, “From what I recall…” or “I don’t remember exactly, but I think this is what happened…”
How To Prepare for Your Deposition
With these five rules in mind, it’s now time to prepare for your deposition:
First, sit down and make an extensive list of all the problems you are experiencing, including specific examples of events that have caused you trouble, discomfort, and pain. Simply stating that you struggle to do the laundry or that you have a hard time sleeping isn’t an event.
It’s a problem, and you’ll certainly want to talk about that during your deposition. But it’s more powerful to recount what happened to you at a specific time. For instance, last night, the sharp pain in your low back woke you up at 2:00 a.m.
You stepped out of bed and immediately felt the radiating pain and burning into your left leg. You nearly fell over as you made your way to the bathroom, but you had to get there for the Tylenol. In sum, tell your story, using specific examples!
Second, meet with your attorney before your deposition to review the accident and your medical records. You don’t need to memorize dates and names or anything like that, but it’s a good idea to review what the documents say, particularly if the accident occurred a long time ago.
Finally, remember to breathe. Do yoga or stretching. Play some golf. Listen to music. Do whatever it is you do for balance and calm. Depositions are stressful, but you can do it if you follow the top five rules and prepare with your attorney. No need to over-prepare. The facts are what they are. So speak the truth and let the chips fall where they may.
Do You Have to Answer All Questions in a Deposition?
You do not have to answer all of the questions presented in a deposition, however, you may be compelled to answer if the judge overrules the objection.
Questions that you don't need to be answered typically fall into three categories:
- Private information -- questions about health, sexuality, religious beliefs
- Privileged information -- some examples are a conversation between you and your doctor or a confession given to your priest
- Irrelevant information -- question that does not have to do with the outcome of the case
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.
The deposition is an opportunity for you to show the other side’s lawyer, the judge, and the jury:
- Who you are
- How this case and your injuries have affected you
- And why they should ultimately side with you
Although the judge and jury won’t be in the room while you give your testimony, they might later read your words or see you on video to give your answer. It’s important that you be natural, likable, and conversational. You should also be unafraid to speak your mind and provide not only the truth, but the whole truth, especially when the whole truth is on your side.
Finally, the deposition is an opportunity for your lawyer to evaluate the case more fully. During the deposition, we may notice strengths or weaknesses in your case that we haven’t yet seen or considered thoroughly. Or you may remember or say something you haven’t already told us. New information - or information seen in a different light - will require us to look at the case anew.
What a Deposition Is Not
The deposition is not an opportunity for you to convince the other side’s lawyer 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).
Thus, you should not argue with the lawyer questioning you. Just answer the questions honestly, openly, and in a way, you might tell a friend or family member your story. Your job is not to try and make the case go away or try to get a great settlement without a trial.
There are no “walk-off home runs” in litigation, so don’t think any answer you give will win your case, or that exaggerating what you believe to be a strong point will win your case. Don’t worry about winning at all. Your job is simply to answer the questions posed and only the questions posed, in a natural and conversational way.
Call Bailey | Stock | Harmon | Cottam | Lopez LLP at (307) 222-4932, or contact us online for award-winning legal representation. With over 100 years of combined experience, we can be relied on to provide you with high-quality legal services.