A deposition is a statement taken of a party or a witness,
under oath, in front of a court reporter.
Any statements made, may be used in court.
It is one of the most important tools that lawyers use
to gather evidence and information about a case.
As a trial lawyer,
almost everyone of my clients who is involved in litigation
will be required to give a deposition.
And in most cases,
I will depose the person who we contend is at fault
for causing damages or injuries to my client.
Here is some basic information about a deposition.
In the deposition,
there will be a court reporter whose job is
to take down every single word that is said in the deposition.
Sometimes the deposition will also be videotaped by a videographer.
My client will be asked a long series of multiple questions
by the attorney representing the opposing party.
In some cases,
there may be more than one attorney,
and each will have their turn to ask questions.
The testimony will be taken down by the court reporter
who will type it up and print it out in a booklet type form.
To help you prepare for your deposition,
here are a few things I always tell my clients.
Rule number one, tell the truth.
This is the most basic rule and should never be taken lightly.
Additionally,
here are four steps that are also important to understand.
First you should always LISTEN to the question being asked to you very carefully
and then Secondly, PAUSE.
PAUSE before you answer.
The reason you want to pause is, one,
you want to make sure that the attorney is through asking the question,
two, it gives yourself an opportunity to make sure you understand the question,
and three, it gives your attorney an opportunity to make an objection if one should be made.
So do not answer the question too quickly and pause before you answer.
After following these first two steps, then you can go on and number Three,
ANSWER JUST THAT QUESTION.
Then number Four: STOP TALKING.
Often times,
this is the most difficult part of the deposition
because people want to explain all sorts of things in their answer,
when quite often, an explanation is not requested or needed.
If an explanation is needed, typically the attorney will ask for it or,
at the end of the deposition,
YOUR attorney may ask you to explain something further.
So again, the four steps are,
listen to the question,
pause,
answer JUST that question
and then STOP TALKING.
By following these steps,
you will be able to navigate through an entire deposition easily.
A good analogy to a deposition is that of a baseball game.
What I mean by this is when your team is in the outfield,
it does not matter how good you are at playing baseball, you can not score a run.
I tell my clients that when you are being deposed, it is like being in the outfield.
You do not have the ball, and you will not be able to score a run.
You are purely playing defense.
And when I say defense,
that means you must listen to the questions and answer them accurately without much elaboration.
There is a time and place to elaborate on your answers,
and I will get to that in a minute.
Now that we have gone over the basic rules of how to procedurally
listen, pause, answer and then stop talking,
the next important thing to know is what are the appropriate answers.
There are really just five basic answers that are the key to a successful deposition.
The first one is, YES
YES sir,
the second one is, NO
NO sir,
the third answer is, I DON’T KNOW.
Number four is, I DON’T FULLY UNDERSTAND YOUR QUESTION,
and number five is, if you need one,
you may ask to TAKE A BREAK.
These answers may seem too simple but remember the old saying “Keep It Simple?”
It really applies here.
If you know the answer is yes or no, then answer it that way.
However,
if you do not know the answer to a question, the worst thing you can do is guess.
The problem with guessing in a deposition is that if you guess wrong,
it might be interpreted as a false statement.
We all know that no one is going to intentionally lie at a deposition,
but by guessing wrong, you can cast doubt on your credibility.
So if you're not certain of your answer,
make sure that you tell the attorney that you don't remember
or you don't know or you're not sure.
If you are sure, then tell them your answer with certainty.
Also, if you do not understand a question,
or it seems complex or compound with lots of parts,
please ask the attorney to rephrase the question.
The reason for this is that when your testimony is typed up into a booklet,
the question will be very clear and your answer will be very clear.
So if you did not fully understand the question and you guessed,
then your answer may not be as accurate as you meant it to be.
Remember,
you should take your time and you are not to be rushed.
As a witness,
you can set the pace of the deposition by listening to the question carefully,
pausing,
and then answering the question when YOU are ready.
Also, you are allowed to take breaks if and when you need them.
A deposition is not an endurance test.
Typically most depositions come in three phases.
Phase one will be about your life BEFORE the accident or event that caused your injury.
You will be asked all types of background questions like,
tell me all the places where you worked, where you lived,
where you went to school, all about your prior medical history,
as well as who are all the doctors that you have seen in the past.
If you’ve ever been convicted of a crime,
been arrested, been in drug or alcohol rehabilitation.
Or have you ever been divorced, used an alias name,
filed tax returns for the past five years,
or lied on an employment application.
You will certainly be asked you if you have ever made any other claims
for personal injury or worker’s compensation.
They will ask you to list all other prior injuries or hospitalizations.
They may ask if you have ever been a victim of domestic violence,
or if you have ever sued or been sued.
They will ask you to explain how you selected the doctors that you have seen for this case.
They may also ask if you have gone on any vacations or trips since the accident.
In this background phase of your deposition,
try to answer the questions without much elaboration.
Keep it simple and straight forward.
Phase two of the deposition is typically about the FACTS of the accident
or the event that caused your injury.
In some cases, such as a rear-end motor vehicle crash,
the facts of how the accident happened may speak for themselves.
You really won’t have much to explain since you were facing forward looking out the windshield
and you never saw the car that hit you before the impact.
In this situation, your answers will be short and simple.
However, in other cases that are more complex and the issue of liability is contested or in dispute,
your version of how the accident happened may be critical to protecting your claim.
In a contested litigation accident,
if you don't know how the accident happened or the details of it,
then you may not be able to refute the defendant's version of the accident.
You should discuss this type of information with your attorney
so that you are able to easily explain the facts of your accident as you know them.
Often times,
attorneys will try and set a trap for you by getting you to estimate or take guesses
as to the amount of time or distance you had to observe the other vehicle.
If you are able to accurately estimate those things, then please do so.
But if you don't know, then do not guess.
Make sure you and your attorney go over the details
of how the accident happened so that you are confident explaining what happened.
The third phase of the deposition is about life AFTER the accident.
This is an area where they are going to ask you questions
about how this accident has affected your life.
They will ask about what injuries you have sustained
and how this has affected your ability to work,
or how might it affect your ability to work in the future.
In this third phase of your deposition,
you should elaborate and thoroughly and explain
how the accident has affected your life.
Now you may be wondering why your attorney is sitting there quietly
and not objecting to things such as relevance of the questions being asked.
Well, it's a little bit frustrating,
know that if lawyers objected to all the things that they could object to in a trial,
depositions would take days and weeks rather than just a few hours.
There is a rule of law that says lawyers can only object to a few things in a deposition.
The first is,
your lawyer should object to any question that would violate
or infringe upon your constitutional right not to incriminate yourself.
We have all heard politicians asserting their Fifth Amendment privilege against self-incrimination.
If and when your attorney makes any objection,
it is best that you stop speaking immediately,
and listen carefully to your attorney to make sure that you
follow your attorneys instructions and advice.
Another common area of objections is one that calls for violating the attorney/client privilege.
In other words,
if the attorney is essentially asking you what you and your attorney have discussed,
that is privileged information and your attorney should object,
then say,
that is privileged communication and instruct you not to answer that question.
These two objections are the main objections that you might hear
in a deposition where your attorney will advise you not to answer.
However,
there is another objection which is called objecting to the FORM of the question.
Your attorney may object occasionally
to the form of the question being asked by the other lawyer.
If your attorney objects to the form of the question,
it is best if you stop talking, listen to your attorney carefully,
and he will probably tell you that it is okay for you to answer the question.
But there may be some technical thing about the question such as,
it might be compound or misleading,
or there might be other things that are wrong with the question
and your attorney is just pointing it out for the record,
which could prove to be very important later on in trial.
If your lawyer makes a FORM objection
and you understand the question and are able to answer it, please do so.
If for any reason you do not understand the question,
please tell the other lawyer you don't understand the question.
Here are a few additional tips that will help you survive a deposition.
Do not ever argue with the other lawyer.
If the deposition becomes unpleasant, it is your attorney’s job to protect you.
You should not have to fight for yourself.
Avoid any attempt at a joke or sarcasm.
This rarely reads well in a transcript and will make you look bad.
Also, every witness can make a mistake in their deposition.
Do not become upset if you find that you have made one.
Once you realize you made a mistake,
you should tell the opposing attorney that you made a mistake
and would like to correct and/or clarify something you said earlier.
Also,
if you are asked to produce a document, such as your diary, journal, notes,
driver’s license, health insurance card, wallet or purse,
do not agree to show or give it, and ask that they speak with your attorney.
If you are interrupted by the other lawyer, stop talking, let the lawyer finish speaking,
and then courteously state that you were interrupted
and that you did not finish answering your previous question.
Some lawyers will ask the same question over and over again,
but just slightly differently.
Usually,
when they ask the same question over and over, they are hoping you will change your answer.
If this happens,
you can politely remind them that you have answered that question before,
and your answer is the same.
One other thing to remember is that the opposing lawyer is NOT YOUR FRIEND.
This is NOT a friendly, casual conversation.
This is an interrogation.
The other lawyer has a job to do and it is to find holes and weaknesses in your case.
If they don’t seem to understand something, it is NOT your job to help them.
You have the right to make them ask the right questions.
If they can’t or don’t ask the right questions, you do not have to help them.
Another tip, a deposition is not a memory test.
If you need notes to keep track of important things, you can use notes,
but what ever you refer to in the deposition will be examined by the lawyers
and marked as an exhibit to your deposition.
These are just a few of the basic guidelines to help you understand the process of a deposition.
The preparation for a deposition can be a few hours, or in some cases, a few days.
If you have any questions about this information, please call me.
Thank you for watching my video.