So You Are Being Deposed…

By: Mark R. Schlegel, Ryan T. Emery

Hopefully you never find yourself a party to a civil lawsuit, be it as a defendant or as a plaintiff, as such matters can be stressful, time-consuming and costly. There are of course occasions where lawsuits are unavoidable such as when you served with a summons and named as a defendant. On the other side of the coin, there may come where you are injured, be it personally and/or financially, and have no choice but to sue an individual or entity that you believed caused your injuries. In the unfortunate event that you do find yourself in any of these scenarios and are a party to a lawsuit, there may come a time when you are noticed for a deposition.

What is a deposition?
A deposition is your testimony under oath. You will be asked questions by the opposing attorney (and in some cases by your own attorney) and the questions and your answers will be recorded by a court reporter, a person who is competent to take down exactly what is said by you and the attorneys.

What is its purpose?
The attorney deposing you wishes to find out your recollections of the facts and circumstances of the incident giving rise to the lawsuit. The attorney is also interested in what your story is now and what it is going to be at the time of trial. The hope is to prepare their case to overcome your claim (if you are the plaintiff) or defenses (if you are the defendant) and, possibly, to catch you in an inconsistency, even if only a minor one, and therefore subject to attack at trial.

Deposition pointers
Below are some tips and guidelines if and when you are deposed. Every matter is different but these should be generally applicable to all types of lawsuits:

  • Treat all persons in the deposition room with respect. Do not be afraid of or intimidated by the lawyers.
  • Speak up and clearly. Avoid using nods of the head and “uh huh” type responses.
  • You are under oath so please tell the truth. Do not try to figure out before you answer whether a truthful answer will help or hurt your case.
  • Never state as a fact something you do not know. While you should never guess, you may make an honest estimate where appropriate (in response to questions as to time elapsed, distances, etc.). But if you do not know, DO NOT GUESS.
  • Listen closely to the questions asked, and answer only what is asked of you. Do not volunteer any facts not requested. Answer all questions directly, giving concise answers to the questions put to you, and then STOP TALKING.
  • Do not attempt to answer a question unless you have heard it and clearly understood it. If you did not, ask for the question to be repeated or rephrased so you can understand it.
  • Do not reach for any document you think might be helpful.
  • Do not try to memorize your testimony.
  • If another attorney begins to speak, do not begin to answer until that attorney has finished his/her statement and have told you to begin or complete your answer.
  • Do not let the opposing attorney get you angry or excited. If you have a short temper, try to keep it in check. If there is a disagreement or argument, attorneys are there to argue your position; you should appear as reasonable and even-tempered as possible.
  • Never joke during a deposition.
  • After the deposition is over, do not chat with the opponents or their attorneys. NEVER speak with the other parties or their attorneys unless all counsel are in present.