The financial stakes can be high when a lawsuit is filed with the court. The parties on either side of the dispute must gather evidence to prove their case to a judge or to a jury that will eventually decide which party wins and which party loses. Deposition testimony can be important evidence in a case.
A deposition is a discovery procedure in which a witness or a party to the lawsuit is questioned under oath by one or more of the attorneys for the parties. The deposition testimony is recorded by a court reporter or stenographer who prepares a written transcript of the sworn testimony. All or part of the testimony can be offered as evidence at the trial to prove a disputed fact or for other purposes allowed by law.
If you are asked to appear to give deposition testimony, it is normal to be nervous. There are a few tips that can help you get through your first deposition no matter how anxious you might be.
1. Preparation is the key to success
Lawsuits frequently take time to develop. Investigations, evidence gathering and review and other procedures can result in a lawsuit being filed months or years from when the incident or activities giving rise to it first occurred. The best thing you can do as a deposition witness is to review any documents you might have to assist in refreshing your recollection of the events. If this is your own case, keep in mind that the outcome could hinge upon how well you do at the deposition.
2. You are more in control than you might think
The fact that you are the focus of everyone’s attention at the deposition can be unnerving, but it also gives you quite a bit of control. You have the right to take as much time as you need to think about the question before answering it. You also have the right to ask that questions be read back to you if you are not certain about what was asked. When necessary, you can even ask to take a break for a few minutes as long as you do not take advantage of it. Keep in mind that lawyers get paid for their time, so while you are taking a break, the lawyers are billing their clients for the time.
3. Appearing at a deposition is usually not by invitation
If you are a party to the lawsuit, your attorney can advise you of your rights, but attorneys usually serve subpoenas on witnesses to force them to appear. A subpoena is an order of the court directing a person to appear at a designated time and location to give testimony at a deposition. A judge can hold a witness in contempt of court for failing to honor a subpoena and appear at a deposition. Now, here is the good news: You have the right to have an attorney representing you at the deposition.
4. Do not volunteer information
Depositions provide an opportunity for the attorneys for the parties in a lawsuit to gather information. Your job as a witness is to answer only the questions that are asked of you. You are not there to volunteer information. For example, if you are asked to state your age, you should not provide your date of birth unless it was part of the question.
5. You do not have to answer every question
You might be asked a question to which you do not know the answer. The attorney asking the question might make it seem as though you are expected to have an answer to every question, but the fact is that you are permitted to forget or not know an answer. Just be truthful and honest when answering.
6. Remain in control
If you are a party to a lawsuit, a deposition is probably the first and only opportunity the opposing attorney will have before trial to evaluate you and the impression you will make on a panel of jurors. A deposition is not the place to get angry or show annoyance. For all you know, the purpose of the questions being asked of you might be to determine whether you can be rattled by certain types or the wording of questions. Stay calm and let your attorney handle inappropriate questions with objections on the record.
7. Keep your voice up and avoid gestures
The usual method for recording a deposition is with a stenographer whose job it is to take down what is said using a special type of shorthand using a machine specifically designed for that purpose. The stenographer can only record what is spoken, so nodding your head or gesturing with your arm cannot be transcribed. You must verbalize your responses to questions and speak loud enough to be heard by the stenographer. Keep in mind that the stenographer can only record one person at a time, so avoid answering a question until after the attorney has finished asking it.
8. It’s easy to make corrections
If you realize during the deposition that you made a mistake or left something out while answering an earlier question, you have the right to correct yourself or add the additional information during the deposition. The best way to do this is to first let your attorney know what happened and be guided by what he or she tells you.
When a deposition is completed, the stenographer delivers a copy of the transcript of the testimony to each of the attorneys. Your attorney will likely have you review the transcript for errors or omissions and advise you how they can be corrected. You do not want to your deposition testimony to include incorrect information because it could be used at trial to show that you were not truthful or that you were uncertain of the true facts.
You should talk to an attorney as soon as you are notified about giving deposition testimony. Even if you do not hire the attorney to represent you, getting legal advice about your rights and possible consequences associated with testifying can be helpful.