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.