OVERVIEW
Depositions play an indispensable role in civil litigation. Simply put, a deposition is the questioning of a witness under oath, in the presence of a court reporter, who is trained to take down every word of testimony. Before delving into how you can best prepare yourself for your deposition, it’s important to understand the purpose and importance that depositions play in litigation.
WHAT ROLE DO DEPOSITIONS PLAY IN THE LITIGATION PROCESS?
Depositions play a critical role in the litigation process for several reasons, including:
- Discovery of Facts. Because depositions are performed in real time, the person asking the questions can pivot and react to responses provided by a witness. And since the law gives parties broad leeway when it comes to the type of questions that a witness may be asked at a deposition, depositions are an excellent way to obtain facts.
- Gathering Evidence. Subject to certain stated objections, the sworn testimony obtained during a deposition is admissible as evidence in court and may be read into the record for any purpose at the option of a party. Admissions, inconsistencies, or factual confirmations can and do significantly impact the outcomes of cases.
- Assessing the Credibility of Witnesses. Depositions allow attorneys to assess the credibility, demeanor, and reliability of witnesses. Observing how a witness answers questions, reacts to pressure, or handles cross-examination can provide valuable strategic insights into how the witness might perform at trial—e.g., whether a jury is apt to believe or like the witness.
- Case Evaluation. The information obtained through depositions can help both sides evaluate the strengths and weaknesses of their cases, often leading to more realistic settlement discussions. Sometimes, depositions can facilitate settlements, thus resolving disputes without the need for a trial.
- Preservation of Testimony. Depositions are critical in preserving witness testimony in cases where the witness may not be available to testify by the time trial rolls around. For example, for witnesses who might be seriously ill, out of the country, or are facing imminent death, depositions are necessary to preserve their testimony. The deposition transcript serves as a record of their testimony and can be referred to or used in court even when such witnesses are not going to be available to testify in person.
- Narrowing of Issues. Information obtained during depositions often allow the parties to narrow the relevant issues actually in dispute, thus resulting in a more focused and streamlined trial process.
- Impeachment Material. If a witness gives inconsistent statements between the deposition and the trial, the deposition transcript can be used to impeach the witness’s credibility. This can significantly impact the jury’s perception of the witness, and by extension, the case. Impeaching a witness’s credibility by questioning the witness about material differences between their deposition testimony and testimony provided at a trial (or in some other form of discovery) is an incredibly powerful took in a litigator’s arsenal.
- Avoiding Surprises. Since depositions often expose the facts, arguments, and potential defenses of each party, they greatly minimize the likelihood of unexpected revelations during the trial. This allows both parties to be better prepared to address all pertinent issues, reducing the probability of unforeseen complications at trial.
Given the importance that depositions play in the litigation process, it is in a witness’s (especially if the witness is a party to the lawsuit) best interest to ensure that they are properly prepared when it comes time for their deposition to be taken. Often, the task of preparing a witness for his or her deposition falls on the attorney representing them. But that doesn’t mean that a witness shouldn’t take steps to prepare him or herself.
THE TOP 20 TIPS TO REMEMBER IN PREPARING FOR YOUR DEPOSITION
If your deposition has been noticed by an opposing party, or in the case of a non-party, you’ve been subpoenaed to submit to your deposition, it’s critical for you to prepare yourself. By keeping the following points in mind, you will greatly increase the odds that you’ll give your best testimony.
- Hire an Attorney. In our highly complex legal system, representing yourself without the advice of counsel is a dangerous proposition. This is especially true in the context of a deposition. Not only do you run the risk of waiving critical objections to inappropriate questions, but a competent attorney will prepare you for potential questions, provide you with guidance on the most appropriate ways to respond, and where applicable, lodge critical objections to improper questions.
- Review Relevant Documents. Before the deposition, you should review all relevant documents, such as contracts, emails, and any other correspondence related to the case. Familiarity with these documents will help in answering questions accurately and consistently.
- Know the “Facts of the Case”. Understanding the facts of the case is paramount. A party (or party-affiliated witness) should work with their (or the party’s) attorney to identify key facts, possible contentions, and legal theories of the case. This includes understanding the claims and defenses raised by both parties.
- Rehearse / Role-Play. While most people disregard this particularly useful tactic, practicing how you’re going to respond to expected questions can build confidence and help you refine your responses. Conducting mock depositions with your (or the party’s) attorney to familiarize yourself with potential questions and to develop clear, concise, and accurate answers is a great way to ensure that you’re prepared to give your best testimony.
- Understand the Legal Theories of the Case. This suggestion applies more to party deponents, although it’s never a bad idea for any witness to understand the legal theories and principles applicable to the case. This understanding can help a witness answer questions logically and consistently.
- Review Your Prior Statements. Make sure you review any prior statements you may have made, such as in prior affidavits or in answers to interrogatories—even if such responses were given in another case. This will help ensure that you remain consistent in your responses. Your inconsistent statements can be used to challenge your credibility.
- Keep Calm and Maintain Composure. Maintaining composure during your deposition is critical—especially when the other party is videoing the deposition. Attorneys often ask provocative or misleading questions solely to elicit emotional responses. It is essential, therefore, to remain calm, think before responding, and avoid being argumentative or defensive.
- Answer Only What You’re Asked. While this is much easier said than done, it is so important to answer only the question that you’re asked. Witnesses who ignore this tip often give the opposing attorney a lot of ammunition (i.e., information) that he or she might never have obtained if the witness had just limited his or her answer to what was asked. For example, if you’re asked if you know the time, your answer should generally be “Yes” or “No.” It generally should not be “Yes, it’s 10:00” or something like that. This doesn’t apply to foundational questions about your background, but it absolutely applies to information related to the issues of the case. [There is an exception to this rule where, in certain cases, it helps to educate the other side about the strength of your case/narrative, but that’s a topic for another article.]
- Fee Free to Ask for Clarification. Unfortunately, a lot of attorneys are simply bad at wording questions, and so they end up asking confusing questions. If a question is unclear, request clarification. If you don’t understand the question, request clarification. If you think you understand where the attorney is trying to go, resist the urge to help him or her out (i.e., see tip #8 above). Simply ask the attorney to reword the question.
- Avoid Speculation and Guessing. If not needlessly abused, “I don’t know” and “I don’t remember” are perfectly acceptable responses. Never guess at a response, and never speculate. You either know something or you don’t. A skillful attorney will use our natural tendencies to substantively respond to questions against you. It’s okay to provide an estimate. It’s not okay to guess or speculate.
- Don’t Argue Your Case. If you’re a party to the lawsuit, your deposition is not the time to argue your case. There are other avenues to accomplish that. Your deposition is nothing more than a fact gathering exercise by the opposing side. If you attempt to argue your case in providing your responses, you will certainly volunteer a lot more information than you should (i.e., see tip #8 above).
- Understand the Difference Between Confidential and Privileged Information. You need to understand the difference between confidential information and privileged information. While the concepts of confidential and privileged information often intersect, they are very different in terms of what you’re obligated to share at a deposition (or in court for that matter). Confidential information consists of information that you may be morally or legally obligated to keep private—e.g., medical, employment, and tax records are good examples. Privileged information, on the other hand, is completely protected from disclosure unless the privilege is waived by the privilege-holder—e.g., communications between you and your attorneys. You may be required to disclose confidential information at a deposition (usually after signing a protective order regarding the information’s use), but you can never be compelled to disclose privileged information (unless the privilege is waived).
- Follow Your Attorney’s Cues. While it’s improper for an attorney to coach a witness during a deposition, that doesn’t mean that you won’t be able to follow your attorney’s cues regarding a particular question. For example, if your attorney objects to a question as being “vague or ambiguous,” then you might ask the attorney taking your deposition to rephrase the question (i.e., see tip #9 above).
- Follow Your Attorneys’ Instructions. There are few things more potentially damaging to a case (and more frustrating for an attorney) than a witness who has gone rogue. If you have an attorney with you, follow his or her advice. If, for example, the attorney instructs you not to answer a question, then follow that advice even if the attorney taking the deposition implies that you shouldn’t.
- Pause Before Answering Questions. Pausing for a few seconds before you provide a response—and here too, this doesn’t apply to foundational questions—serves two important purposes. First, it gives you a moment to craft your response, which will reduce the chance of your saying something that you shouldn’t. And second, it gives your attorney time to lodge any applicable objections.
- If You Make a Mistake in Your Testimony, Correct It. If you make a mistake in one of your responses, correct the record as soon as you discover the mistake. Mistakes happen, so there’s nothing wrong with going back and providing the proper response. Accurate and truthful responses are crucial because you can count on the fact that any inconsistencies in your testimony can and will be used against you (to the detriment of the case).
- Avoid Absolutes. Avoid absolute statements like “always” or “never” unless you’re certain. If an exception is found, a good attorney can and will exploit your use of absolutes to challenge your credibility. So make sure you’re certain before giving absolute responses.
- Take Breaks as Often as You Need To. Contrary to popular belief, you¸ and not the attorney taking the deposition, get to decide when you need to take a break. If, for example, you think that you need to talk to your attorney before providing a response, tell your attorney that, and he or she will tell the reporter that you’re going to take a break. You can then go out and talk to your attorney in private. If you need to go to the bathroom or have a drink or snack, then do so. If you need to stretch your back or your legs, then do so.
- Dress Appropriately. Appearance matters—especially when the other side is videoing your deposition. Dressing appropriately and professionally for a deposition can make a positive impression and potentially influence perceptions. You don’t have to wear a suit, but you should dress conservatively and neatly. Business casual is a safe way to dress.
- Prepare with Rest and Nourishment. Although it seems obvious, you should be sure to get a good night’s rest the night before your deposition and eat a healthy meal. Depositions can be lengthy and mentally exhausting, and adequate rest and nutrition will help you maintain focus and alertness throughout the process.
CONCLUDING THOUGHT
Preparing for a deposition requires thorough review, practice, composure, and understanding of legal theories and the facts at hand. Consistency and clarity in responses, professional demeanor, and proficient legal counsel can significantly impact the proceedings favorably. By meticulously preparing for every aspect of the deposition, a party (or witness) to a civil lawsuit can significantly influence the outcome of their case and ensure that their rights and interests are well-represented.