Fill and Sign the Your Deposition Form

YOUR DEPOSITION: CLIENT AID A deposition is a form of interrogation. Testimony is permanently recorded under oath. Formalities are only slightly less than at trial. The witness - you - must tell the truth. The witness must ANSWER THE QUESTION ASKED. LISTENING is important. To answer the question asked , you must listen to the question . DO NOT answer a question that is NOT ASKED . Prime answers: "Yes" "No" "I do not know." If you do not know, DO NOT try to create an answer. If you do not know, the answer is "I DO NOT KNOW". I. The Deposition Process A deposition consists of questions and answers under oath. The opposing attorney will ask you questions, and a court reporter will take down your answers verbatim. The deposition testimony can be used at trial before the judge and jury. The deposition will usually be taken in a lawyer's conference room or other office, and other attorneys, including your own, will be present. The other attorney is taking your deposition for at least two reasons: 1. To discover what you know about the case (especially what you know that would help his client's position); and 2. To pin you down to a story (that is rebuttable at trial and that you will be unable to change without contradicting your deposition testimony). II. A Deposition Is Not a Trial The deposition process differs from a trial in several important aspects. Neither the judge nor the jury will attend your deposition to observe your demeanor, or for that matter, the demeanor of your attorney or the opposing attorney. On the other hand, your deposition will result in a study - 1 - in black and white in that there is a typed transcript that the other side can make a poster of, make a transparency of and show to the jury by an overhead projector screen or read in dramatic fashion during trial. Obviously, then, the key to a deposition, unlike trial, is what you say, not necessarily how you say it. However, if your deposition is to be video taped, then how you say it takes on much more importance. III. Responses A. Answer each question carefully and precisely. 1. Listen carefully to each question. If you don't hear or understand the question, say so and ask that it be repeated or reworded, or ask the court reporter to read back the question. 2. Take ample time to think of your answer before you respond. Silent moments do not reveal themselves in depositions. There is no danger in silence. 3. Answer questions loudly enough so that everyone can hear. Remember, the court reporter will not transcribe gestures (like the nod of a head), so you must respond with words. Avoid "Huh Uh" and "Uh Uh". 4. Dictate your answer to the court reporter just as you would dictate an important business letter. Always keep in mind - you are not talking - you are creating a written record. 5. You are free to consult your attorney during the deposition and should do so if you have any questions about how to answer. The other attorney may badger you about doing this, but ignore this. You have a perfect right to consult your counsel. If you want to take a break for any reason or to consult with your attorney, then do so. You DO NOT need permission from anyone for a break or to consult your lawyer. B. The less you say, the more you tend to defeat the other attorney's attempt to take your deposition. 1. Do not volunteer information . The questioning attorney often knows less about the substance of the lawsuit than you do, and may not know what questions to ask to elicit relevant information. That is not your problem, so don't help giving something not asked for. Remember you will have an opportunity to give your full story at the trial. The deposition is not the place to impress those assembled with your knowledge of the subject matter. Save that for the courtroom . Just make you deposition answers compete enough so as to be honest. Leave all explanations for trial. Your attorney usually - 2 - will not ask any questions of you. Your Attorney does not want to "educate" the other side. Volunteering information merely helps the other lawyer think of more questions. 2. Do not be afraid to say you don't know or cannot remember. The other attorney will press you to be specific about details (dates, persons present, prices, etc.) and may belittle you for not remembering or for being indefinite. Don't be intimidated into testifying erroneously. A small error by you can be as damaging as a big one, so don't guess or speculate. If you don't know, then say, "I don't know". 3. Do not ask your attorney to refresh your memory as to facts. If you do not know the answer to a question, say so. 4. Do not speculate about what another person means. In particular, examine carefully all documents shown to you, and if you haven't seen a particular one before, or didn't prepare it, don't try to guess what it means, and don't vouch for its accuracy, unless you know. Read all documents shown you fully and completely before you respond to any questions about it. 5. Do not be positive unless you are really certain. 6. You are not expected to know by memory all details of your business or what was said when, by whom and where. Don't be hesitant to say that you might be able to provide an answer by consulting your records or consulting one of your employees or associates. It is particularly important that you not try to speculate or guess as to things which might be reflected in records or documents that have already been given to the other side. The other attorney has read the documents carefully and knows what the answer should be, and is merely testing your recollection and honesty, at best, or hoping to trap you, at worst. 7. You need not answer any question with a simple "yes" or "no". You are free to give your explanation, but remember, don't volunteer information . When your attorney objects that the questioning attorney has not allowed you to complete your answer, it is usually because you are getting ready to say something the other attorney does not want to hear (that is why the interruption). Take your attorney's hint and complete the answer. 8. Eliminate adverbs and superlatives such as "never" and "always" from your deposition testimony. Using proper names instead of "he" or "she" also helps identify people specifically. 9. Beware of questions by the other attorney beginning with words similar to "Is that all?". The other side is attempting to freeze your testimony. A really good witness might say "I'm sure there is more" and leave it at that. - 3 - C. Your deposition is not the time to tell your story. 1. You have a story to tell. Your attorney is as anxious as you are to tell your side of this case. 2. Your deposition, however, is not the time to tell your story. You must resist the temptation to do so. 3. Do not joke or argue with the other attorney. An attempt to persuade the other attorney of the righteousness of your cause will have no effect other than educating as to your side of the case. It is irrelevant whether the other attorney is charming or is a weasel. For your own good, you are not allowed to like or hate him or her. That is forbidden! It is useless to joke or argue with the other attorney. DO NOT DO IT. IV. A Few More Hints 1. Do not be embarrassed about admitting that you have met and consulted with your attorney prior to giving your deposition. If asked what you talked about, simply say that your lawyer instructed you to be completely candid and honest. 2. Your attorney will not do much talking during the deposition, but when he or she does speak, usually to ask that a question be clarified, be sure to listen to the hints, and when the question is repeated, be careful with your answer. 3. Do not consult any document that you have not already given to your attorney for production to the opposing side. The other side has a right to see anything you consult. 4. When you get tired, feel free to ask for a break or to go to the restroom. 5. Never refuse to answer a question. In spite of what lawyers may say, everyone, including a juror, knows that anyone who takes the "Fifth Amendment" is guilty. Therefore, if asked a question you do not want to answer, communicate that to your attorney, who can then deal with the problem. WARNING : If you have any FIFTH AMENDMENT concerns of CRIMINAL or CIVIL matters, your lawyer needs to know. If you robbed a bank just before the incident that prompted the deposition, your lawyer needs to know that and indeed you may need the FIFTH AMENDMENT. 6. It never hurts to impress the other side on what a good witness you will make. Therefore, dress neatly and be courteous during the deposition. Do - 4 - not let this courtesy, however, carry over into volunteering information to be helpful. "Courtesy" merely means saying "please", "thank you", and "sir". V. Tricks of the Trade The questioning attorney is an expert at getting people to say what is wanted. Don't underestimate or try to second-guess anyone. Just listen carefully and watch out for these tricks: 1. Your Friend: The other attorney will often joke with you and try to get you to think this is a friend who simply wants to carry on a informal discussion with you. By trying to get you conversing freely and quickly in the hope that you will open up, let down your guard, and volunteer information. Remember: the opposing attorney is not your friend. Don't volunteer! 2. Your Tormentor: At the opposite extreme, the questioning attorney will bait you and try to get you mad. Sometimes we say things in anger that are against our interests. Remember : don't get upset; remain cool - you will have your turn later. If you feel that you are becoming angry or upset, ask for a short break. The nastier the interrogator is, the nicer you need to be . 3. The Hypothetical or Multiple Question: The other attorney may try to get you to assume something that is not true by asking you a hypothetical question or a question which makes several assumptions, i.e., "Last week after you got back from New York, you wrote Joe a letter, didn't you?" You may have written the letter, but remember the effort is to pin you down as to when you wrote it. Divide the question and answer each part. 4. Summing Up Your Testimony: If you have testified on a subject already, the other attorney may try to improve on your answer by later "summarizing" what you have already said as a prelude to another question, i.e. "Mr. Jones, when we were talking a little while ago about your trip to Europe, you explained that you went in order to deliver some checks to Smith, didn't you? Now, please describe the checks." Remember: don't let the other attorney misquote you; if you have any question about what you said, ask the court reporter to read back your testimony. Don't let the other attorney put words in your mouth. 5. The Pregnant Pause: Often an opposing attorney will pause after you make an answer in an effort to make you think that you should say something else to supply a more complete answer or at least fill the "dead air". Say nothing - merely sit there, smile and wait for the next question. Similarly, the attorney may ask, "And then what happened?" or some other broad, general question. In either case, the opposing attorney does not know what to ask and wants your help. Don't give in. SILENCE IS GOLDEN. ENJOY THE GOLD. 6. Preparation: Your deposition may well be the most significant part of your lawsuit or defense, and it justifies adequate preparation. You may spend many hours with your attorney - 5 - reviewing facts with which you are familiar and rehearsing the manner in which you will answer. Your attorney will first want to know everything you - remember. In giving this information, be complete and candid and do not treat your lawyer as you will later treat the other party's attorney. You will save your attorney's time (and your money) if you review your records and your memory before meeting with your attorney. If, without questioning, you can give a complete and chronological narrative of what happened, you will greatly expedite the preparation and concentrate on taking you through a dress rehearsal. Of course, you should already have supplied your attorney with copies of all your documents. VI. Final Suggestions: 1. Tell the truth to the best of your ability. An erroneous answer is the most damaging one you can give. Your attorney can always find helpful law to support your version of the facts, but may be helpless in aiding you if the other side catches you in a lie or error. 2. Get a good night's sleep before your deposition. Do not be cranky, hungry or otherwise impaired. Do your best! - 6 -