In preparation for a civil trial the attorneys for both parties have a period of time that is called the “discovery” phase, a process during which they try to ascertain all the facts about the case and document everything the other side might know. One of the devices used during discovery is the deposition. A deposition is basically your sworn answers to questioning by an attorney (the opposing attorney if you are one of the parties involved). Depositions usually take place in a conference room at an attorney’s office and are attended by both attorneys, a court reporter, the people who are suing or being sued, and/or witnesses. If you are the deponent in a deposition, you will be asked oral questions under oath. No judge will be present and the proceeding will be informal.
WHY DEPOSITIONS ARE HELD
Depositions are held for the following purposes:
- To uncover facts and truths relevant to the case known by witnesses or the parties involved
- To prevent the deponent from changing his/her testimony at trial or to trick him/her into giving misleading or false testimony
- To have testimony under oath and on record for a witness who may not be able to testify at trial
- To allow the examining attorney to gain information that will help define his strategy
- To help both sides determine the credibility of a witness
- To afford the deposing attorney and his/her client an opportunity to recognize the weaknesses in their case
- To avoid any “surprise” testimony during the actual trial that could damage an attorney’s case
If you are served with a subpoena to be deposed (a command to appear and give testimony), you must take it very seriously. You will be given adequate notice as to the time and place for the deposition. Do not fail to attend, for harsh penalties can be imposed upon “no shows.”
Arrive early to the deposition location. Avoid interacting with other people prior to entering the examining room, in the examining room, or during breaks. Do not discuss the case or your testimony “off the record” with anyone at any time. Do not bring any notes or documentation into the examining room. Your attorney will bring any documents that have been subpoenaed. Allow yourself anywhere from 1-8 hours for the deposition; complex cases may require multiple days.
THE DEPOSITION PROCESS
A court reporter will begin by asking you, the deponent, to state under oath that your testimony will be truthful and correct. Then the deposing attorney will begin to ask you a wide range of questions, some of which might seem irrelevant. You will be asked questions about your background and any knowledge that you may have regarding the case. You may be asked embarrassing questions that challenge your character and credibility or that pertain to incidents in your past.
Your attorney will not help you answer questions, but he may object to a question that is asked of you. If that occurs, stop talking immediately and await further direction. Your attorney will instruct you to proceed with answering the question or tell you not to answer.
If you are instructed to respond, be sure to ask the court reporter to reread the question so that you remember it correctly.
The following are additional requests that you may make as a deponent:
- If the opposing attorney asks a question and you did not hear all or part of it, request that the question be repeated.
- If you did not understand a question, don’t be timid about requesting that it be rephrased or explained.
- If the other attorney interrupts you while you are in the process of answering a question, politely point out that you have not completed your response and insist on finishing your answer.
- If you are uncomfortable about a question or need clarification, ask if you may consult with your attorney. (Such consultations must be kept to an absolute minimum.)
- Request a break if you are tired, confused, hungry or thirsty, uncomfortable, need a bathroom break, or must talk with your attorney. However, do not abuse such privileges.
When the examining attorney is finished with his questioning, your attorney may ask followup questions in order to clarify or emphasize your testimony.
During your deposition a court reporter or stenographer will be recording the proceedings, and on occasion an attorney may ask to have a portion of previous testimony read to him. The written record will be saved onto a computer diskette and a computer program will automatically create a transcript that can be shared with both attorneys from the text file on the diskette.
Other means of documenting the proceedings are also utilized under specific circumstances.
Video taping of depositions offers the advantages of showing the demeanor of a deponent, providing a visual record of any physical injuries that may pertain to the case, or be a substitute for the physical presence of a witness in court should he or she be unable to attend the trial. Telephonic depositions are allowed in most states and afford attorneys and deponents the opportunity to communicate from various sites. Video conferencing occurs when video cameras and monitors allow opposing parties to see as well as hear the deposition proceedings.
AFTER THE FINAL QUESTION
At the conclusion of your deposition, you will be asked whether or not you would like to read the transcript. If you elect to do so, a copy of the written transcript will be presented to you within a few weeks after the deposition is concluded and you will have a limited amount of time to make corrections. Read the document very carefully. If you do not make corrections within the designated time allotment, you will not be permitted to do so later.
Most cases settle and never make their way to a courtroom. However, if you do go to trial, re-read your deposition several times prior to your court date so that you can recall everything you said under oath. Your deposition is testimony that can be used to make or break your case in a court of law.