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Introduction
Depositions are an important part of the discovery process. Unlike
interrogatories a deposition is dynamic. If you don't like the answer to a
question you can phrase it a different way and see if you like the response to a
slightly different question. The real benefit of a deposition is the
ability to follow-up a response with another related question.
The purpose of a deposition is to learn what the deponent might say at
trial. If the person testifies differently at trial from his deposition
testimony the transcript of his deposition may be read back to him in court and
the witness will lose credibility.
They tend to be expensive, both for the attorney time as well as for the
production of a transcript of the deposition by a court reporter. The cost
of an original transcript is typically $500.00 and it will often run $250.00 or
more for a copy of a deposition transcript. See our Transcript
page to see what a deposition transcript looks like.
General Advice for Giving A Deposition
Most of the general rules for giving deposition testimony flow from the fact
that every word of the deposition is being taken down. As an example, if
someone asks you how fast you were going and you say "I was going 5 miles
under the speed limit, no, strike that, I was going 30 miles per hour," the
transcript will look like this:
Mr. Attorney: How fast were you going?
Mr. Witness: I was going 5 miles under the speed limit, no,
strike that, I was going 30 miles per hour.
In other words it is not like dictation, you can't take things back, once the
words are out of your mouth they go down on the page, and there is no turning
back.
- Think about your response. Therefore the first rule of
giving deposition testimony is think carefully about your response.
Dictate your response to yourself in your head and revise. Choose your
words carefully and speak only when you are sure about your
response.
- Listen to the question. Listen carefully to the
question. Try to anticipate the next few questions but answer the
question that is on the table.
- Do not volunteer. Do not volunteer information.
Far too often a deponent is asked a simple question, he answers, or does not
answer, and then goes off on a two minute explanation of something he thinks
helps his case. Your deposition is your opportunity to give away as
little information as possible. It is not your opportunity to win the
case. Your deposition will only be read back to the jury in its
entirety if you are dead, so do not try to win the case, or make your points
in your deposition. Answer the questions, only the question, and do
not volunteer information.
- Answer "yes" or "no." Most often
the question calls for a "yes" or a "no," if at all
possible answer appropriately and stop. Sometimes a "yes" or
a "no" is so misleading that you must provide some explanation so
that when a question is read back at trial you do not look foolish, but most
often providing an explanation hurts your case, and gives the opposing
lawyer more fodder for questions.
- Do not answer with your rationale. Answer the
question, do give the rationale for your answer. Do not fail to answer
the question and give only your rationale. Here is an example of what
not to do.
Mr. Attorney: So you were looking over your right
shoulder?
Mr. Witness: Well, I was trying to back up.
The witness has not answered the question. Instead the witness has
answered with his rationale. This gives the lawyer an opportunity to
follow up with more questions. Your rationale response may harm your
case. By not answering the question you are slowing the process for
everyone, as the lawyer will almost certainly have to ask the question
again.
- The lawyer is not your friend. Most lawyers,
particularly litigators are personable, friendly, and outgoing. Some
are even charming and very handsome or very pretty. It is not uncommon
for a witness unfamiliar with the process to be drawn in by the opposing
lawyer and to answer questions directly opposite to one's intent because the
lawyer asks the question is such a pleasant way or even because the lawyer
has asked so many questions that call for a "yes" that when he
gets to the zinger which calls for an adamant "most definitely
not" the witness has been lulled into a false sense of security and
just goes along and answers "yes." Some lawyers advise their
client not to shake hands with the opposing lawyer. You will have to
make this decision for yourself but remember that no matter how personable
the lawyer appears to be, if you are a defendant he is out to take your
money from you and if you are a plaintiff he is out to deny you just
compensation.
- Do not make jokes. Do not make jokes or humorous
remarks. Humor so often depends on the moment, facial expressions, the
mood of the people present, and a variety of other factors which are almost
impossible to recreate. When read back to a jury in some other context
humorous remarks will at best sound stupid, and at worst be offensive to
some juror.
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