WHAT IS A DEPOSITION?
A deposition is a question‐and‐answer session between the attorney and a witness where the witness’s answers are given under oath. The answers are taken down by a court reporter who then prepares a transcript of the deposition. Depositions can typically last all day, and up to seven hours.
To the extent the witness’s answers at the deposition differ from the trial testimony, this will likely be considered by the trial judge and may impact the witness’s credibility (believability) at trial. Since the deposition testimony can be presented at trial it is very important testimony.
A deposition is typically held in a lawyer’s office with lawyers for each side present, a court reporter, and often the parties to the action. While the deposition process can seem informal, it is extremely important that your testimony be accurate because what you say at the deposition can be used against you at trial.
WHY ARE DEPOSITIONS TAKEN?
The following are the typical reasons why the defendant’s attorney will take your deposition:
- To discover what you know about the case and certain issues. The opposing attorney is searching for any information that might lead to evidence.
- To commit you to statements under oath. For example, if you testify under oath in your deposition that something occurred a certain way, and you attempt to change your testimony later at trial, the opposing attorney can read that portion of your deposition to the family court judge, thereby using your deposition testimony against you.
- To discredit your testimony or the testimony of other witnesses through you.
- To see what you look like, hear you speak, and see how you might present in court. Basically, how credible is your version of events.
DEPOSITION TIPS: HOW TO DEAL WITH THE OPPOSING ATTORNEY
- Be prepared. You should review the facts of your case as contained in your declaration(s) and court filings so that your memory is refreshed, and you can answer correctly. This is important not only for knowing how to deal with potential weak spots in your case, but also for remembering and knowing all the strong points in your case. By being prepared you can make a good, truthful, and forthright impression.
- Think before answering. Listen to the entire question and think about it before answering. By waiting for the entire question to be asked and not jumping in with an answer to what you think is the question, you will not mistakenly give away information that the other attorney was not actually asking about. Also, a short pause allows you to think about the truth and the answer you want to give. Finally, this also allows your attorney to make an objection to the form of the question if there is a basis to do so. Try to remember to pause for a second, or two, before answering the question so as not to “step on” the questioner. Slow down.
- Never volunteer information. Do not volunteer information or give testimony about something that was not asked. Your duty is to tell the truth and answer only the question that has been asked. If the answer to the question is “yes” then you answer “yes” and that is it. You do not explain why the answer is “yes” unless the opposing attorney asks for that question. Keep your answers brief. Too many people have hurt their cases by volunteering information that was not asked for by the opposing attorney. Doing so might reveal something the opposing attorney had not thought of asking about and it also opens up other lines of questioning that may be damaging. If you have answered the question asked, then sit quietly and wait for the next question.
- Make sure you understand the question. If you do not fully understand the question that has been asked, then do not answer it. Ask for clarification. If you did not hear the question, then ask that it be repeated. You have the right to understand the question before you give an answer. If you give an answer to a question the opposing attorney will assume you understood it. If you thought you were giving an answer to a question when the opposing attorney was asking a different question, then you might harm your case. If in doubt, ask for clarification or rephrasing of the question.
- Tell the truth. This is your obligation even if you think the truth will hurt your case. Often the harm caused to a client’s case by not being truthful and getting caught is far worse than the harm caused by being truthful about a weakness in the case. Prior to your deposition, you should review perceived weak areas in your case with your attorney so that you will know how to address them if questions arise during your deposition.
- Don’t get rattled or upset. If you get rattled, upset, or argumentative in your deposition in response to the attorney’s questions, then you will likely not make a good impression. So, even if the questioning becomes uncomfortable or tough, be pleasant, straightforward, and professional. Do not argue with the attorney. Do not get snarky or cute. Be professional at all times.
- Don’t guess. Do not guess in response to a question. If you do not know the answer to a question, say so. Nobody has a perfect memory. “I do not know” is a proper response to a deposition question if you truly do not know. Also, do not guess if you do not have personal knowledge of the question asked.
- If you do not remember, say so. If you do not remember a particular fact or answer to a question, say so. If you knew it at one point, but cannot remember, then say so. If you are certain of an answer, but not absolutely certain, then say so. Do not make assumptions if you cannot remember.
- Stay true to your answers. If your original answer to a question is accurate, stick to it if the opposing attorney asks the question again. Many attorneys use the tactic of asking the same or similar question repeatedly or in different ways to get a different answer. Stick to your original answer and do not let the opposing attorney puts words in your mouth or influence your testimony with this tactic.
- Read the document before answering. Oftentimes documents will be exhibits in your deposition. You may be asked by the attorney detailed questions about a document. The attorney may also read a portion of a document to you and then ask you questions about it. It is important that you never testify about the contents of a document that you are not familiar with. Therefore, the document must be before you and you must completely review it before answering any questions. Make sure to read the fine print as well. If the opposing attorney uses the document to ask a question, insist that the document is returned to you prior to answering the question. Finally, if the defense attorney suggests that the document contains certain facts or shows something, always check the document or photograph to see whether it truly does before answering. Don’t let the opposing attorney interpret a document or photograph in a way you do not agree.
- Silence and breaks. After you have answered the question, do not speak until the next question is asked. Witnesses sometimes become uncomfortable with long silences and feel compelled to keep talking. Remain silent! Wait for the next question.
- Do not bring documents to the deposition. Do not bring notes, a diary or other documents with you to your deposition that you may want to refer to or review. If you do so, the opposing attorney will likely request to review them and question you about them line by line. Also, some notes and written communications are privileged, but that privilege may be waived if you use those items to assist with your testimony. To avoid this from happening, prepare for your deposition with your attorney beforehand and do not bring documents with you to the deposition, unless your attorney asked you to bring these documents.
- Objections. Your lawyer will object to certain questions asked by the opposing attorney. If that happens, wait until he or she is finished. The court reporter will note the objection on the record for a later ruling by the judge at trial. After most objections, you will be instructed to answer the question anyway. This is because your attorney is objecting to preserve the issue at trial when the objection can be renewed. However, some questions are objected to because they seek privileged information. For instance, something said between you and your attorney is subject to the attorney‐client privilege. Under those circumstances, your attorney will object and instruct you not to answer. Try not to be distracted if you hear an objection.
- Correcting Mistakes. After the deposition is concluded and the transcript is prepared, you have a right to read the transcript and correct any mistakes. However, the best time to correct mistakes in your testimony is at the deposition before a transcript has been prepared. Raise any concerns you have with your attorney on a break. After the break, you can often clarify or supplement a prior answer to the opposing attorney’s questions.
- Relax. Finally, while it is important to be prepared and to tell the truth, also try and relax. Be confident in knowing that the truth should prevail and that you and your attorney have properly prepared for your deposition. If you follow the tips above and make a good impression, then you are likely on your way to putting your case in a good position for settlement or trial.
David Dworakowski is a certified family law specialist and a founding partner at Quinn & Dworakowski, LLP, a premier family law firm in Irvine. Mr. Dworakowski takes tremendous pride in his work. For over 30 years he has been helping clients achieve outstanding results.