Not a day goes by that a client doesn’t ask me what is going to happen in a deposition. I give my clients the simple truth about the nature of a deposition: it is a glorified question and answer session. Unlike the violent, outburst-filled depositions you may have seen on TV, most real-life depositions are pleasant, non-combative exchanges of information between opposing parties in a legal case. But whether your case is one of personal injury or criminal defense, you need to have the right lawyer to defend you. There are things that can happen in a deposition which could create serious problems for your case in the long run.
What Is a Deposition?
A deposition is the pre-trial taking of sworn testimony outside of the courtroom about the facts related to a case. This is an opportunity for both parties to meet and ask questions of the opposing side, obtaining answers and statements relevant to the case. Depositions are a common part of the discovery process (fact-finding investigation) of personal injury claims, and are taken in criminal cases to record the testimony of a witness. This is how lawyers can gain a witness’ testimony and prepare for the trial. A deposition can provide information which determines the result of a lawsuit or criminal case. I often tell clients that you can’t win your case in a deposition, but you can certainly lose it.
Who Is Involved in a Deposition?
Since depositions almost always occur outside of the courtroom, you would not expect to have a judge present at a deposition. Most of the time, the following parties will be involved:
- Witnesses. A witness might be you, as the plaintiff in a personal injury case or the defendant in a criminal case, the opposing party, or a witness whose testimony is relevant to the facts of the case.
- Lawyers. The attorneys of both parties involved in the case will be present at a deposition.
- Court Reporter. It is legally mandated for a court reporter to appear at a deposition to record the testimonies given under oath.
- Videographer. If a camera is being used to record a witness’ testimony, a videographer may attend the deposition to operate equipment.
Questions in a Deposition
The questions you hear in a deposition can range widely depending on the circumstances and whether the case is civil or criminal. Your lawyer will help you prepare and instruct you on how to best answer those tricky questions that can pose potential traps. Your legal advisor will also warn you against answering questions you should not answer, generally those which ask for irrelevant, private, or privileged information.
The following categories of questions are ones you can anticipate hearing in a deposition:
- Introductory Questions. You may hear questions like “Do you understand that you are under oath?” or “Are you prepared to answer questions?” Introductory questions may also cover topics such as deposition rules and procedures, the involved parties, your current physical and mental condition, whether you have been involved in a deposition in the past, or guidelines for breaks during the session.
- Personal Background Questions. You can be prepared to answer a good number of questions about yourself. This could include simple questions about your name, age, address, marital status, work, and education, or more detailed inquiries into your criminal history or past involvement in any issues of a legal nature.
- Questions About the Incident. These questions may ask for specific details about time, place, people, and actions, including a chronology of events or drawings of maps and diagrams. You may also be asked about witnesses, involvement of drugs or alcohol, the relationships between and emotional states of involved parties, weather and environmental conditions if relevant, and consequences of the incident in question.
After the Deposition
Following the conclusion of the deposition, a written transcript will be prepared by the court reporter and sent to both parties. Copies will include everything that was said during the deposition and any relevant documents and evidence that was presented. It is the job of your attorney to carefully review the transcript to make sure there are no errors or inconsistencies. Both opposing legal teams are provided with identical material, yet each side will interpret the information in light of their own goals in the case. That is why it is so important to give the other side as little as possible of that which can be used against you.
Tips for a Successful Deposition
The lawyer across the table from you at a deposition is not your friend, and it is a mistake to assume that anyone but your lawyer has your best interests in mind. Attorneys on the opposing side often approach a deposition with the intention of finding out everything you actually know and don’t know, with hopes of catching you in a lie or mistake that can undermine the truth of your entire testimony.
Because there is so much at risk, your lawyer will spend many hours helping you get ready for your upcoming deposition. It is often helpful for you and your attorney to run through a mock deposition together, as this can both ease your anxiety and prepare you to face any question that may be directed toward you in the deposition.
Knowing the following tips about answering questions can help you feel more confident going into your deposition:
- Tell the truth. Lying under oath is a crime and will never help your case.
- Remember, everything you say is being recorded.
- Never offer information beyond what was directly asked in the question.
- Consider your answer carefully before speaking. Take your time.
- Pay attention to every word in the question.
- If you’re not sure what a question means, get clarification before answering.
- It is completely okay to say that you don’t know or don’t remember, when appropriate.
- Listen to your lawyer’s cues and stop talking if they object to a question.
- Don’t guess, make assumptions, speak in absolutes, or answer questions about a topic you are unfamiliar with or a document you have not read thoroughly.
- Try not to get distracted or lose your focus.
- Don’t attempt to rephrase or comment on the question you were asked.
- If the opposing lawyer tries to interrupt you, make sure you are able to finish your answer completely.
- If you misspoke, take care to clearly correct your mistake.
- Be careful of lawyers who try to summarize your statement for you. Do not let them put words in your mouth.
- Use a clear “yes” or “no” rather than a head nod, shrug, grunt, or slangy reply like “nope,” “yep,” or “uh-huh.”
- No matter how you might be feeling, do all you can to avoid indulging in temper flares, argumentative language, and sarcastic comments.
- Take the legal process seriously. Don’t make jokes.
- Give the shortest answer you can while remaining truthful.
Finding the Right Lawyer
Whether you are facing criminal charges or are seeking damages after a car accident that caused your injuries, having the right legal representation is the key element to winning justice and getting the outcome you need to move forward. You deserve to have a lawyer who believes in you, who fights for you, who works for you, who will outwork anyone, and who won’t stop until you recover what you are entitled to under the law. It’s as simple as that. As a fifth-generation Mississippi lawyer, I do everything I can to keep my clients informed of their rights, protected from injustice, and knowledgeable about their legal options. Call my office today to see how I can help you with any questions you have about the legal process.