A deposition is a strategic tool that lawyers on both sides use to dig for the facts before a case goes
You must answer all questions to the best of your ability. You will be under oath and liable for perjury charges if you intentionally lie. Some questions will be personal and routine (name, age, education, etc.) and others will be much more complex. Here are five tips to help you through the process:
to trial. It’s part of the discovery process during which attorneys attempt to find the weak and strong points of the opposition’s case.
This process can either promote a settlement, so the case never goes to trial, or narrow down the issues that should be brought out in court. About 90 percent of all cases are resolved. If the case does goes to trial, the answers you give in a deposition can be used in the courtroom as evidence.
Remember: What you say in a deposition is said under oath. It will be recorded by a court reporter and possibly videotaped. A deposition transcript will be created from the proceedings.
Although a deposition is generally given in a lawyer’s office, it can be just as intimidating as sitting in court. Attorneys are given much wider latitude in the types of questions they can ask in a deposition.
And the fact that a deposition is taken outside a courtroom doesn’t mean that the testimony is any less important. The purpose is to “discover” the truth, but depositions are also used as a way to pin down witnesses’ statements and prevent them from changing their stories at trial. Lawyers also take the opportunity to uncover surprises and traps they might be unaware of, and to test ideas.
Here are a few tips to help you:
Preparation. Don’t underestimate the importance of being prepared. Your attorney will take care of this. Some lawyers take from several hours or even a full day getting a client ready, depending on the nature of the case. If you don’t feel comfortable, let your lawyer know. What you say can be used to impeach you at the time of trial. Preparation should give you a good idea of what will be brought up in the deposition.
Deposition vs. a Trial. During a trial, lawyers are limited to direct examination, cross-examination, and redirect examination. At a deposition lawyers can ask leading questions. Your lawyer will decide when to object and whether you should answer. When a plaintiff’s lawyer has finished, your lawyer may ask questions, but don’t be shocked if it doesn’t happen. Your lawyer knows what your testimony will be at the time of trial and may want to keep that as a defense if the case goes to court.
Answering Questions. Always stop and think before you answer. Make sure you understand the question, and don’t hesitate to ask for clarification. Pausing also allows your attorney to object to the question before you answer.
Who Will Be There? A deposition may include just a court reporter and a witness or it may be a mass of people including attorneys for both sides, an attorney for the witness, a video camera operator, the people involved in the suit, family members and insurance adjusters.
Perhaps the most important thing to remember is that if you are summoned, you must give a deposition. If you don’t, depending on the case, you can be thrown in jail, the suit can be dismissed and you can be liable for financial damages. Don’t try to tackle a deposition without legal guidance and never fail to show up.
The Discovery Process
In discovery, both sides ask questions that they believe will help prove or disprove the case. The questions come in the form of:
Interrogatories – These are written questions that are filed with the court.
Documents – You may be asked to give up all documents related to the case. Your attorney will let you produce only documents that the opposing side has the right to see. The rest will be considered privileged or unrelated.
Depositions – Attorneys ask witnesses questions under oath and the answers are transcribed by a court reporter. Generally, depositions go forward after interrogatories are finished and documents have been provided.
Expert discovery – If necessary, attorneys try to discredit the other side’s experts. This process includes interrogatories, documents and depositions.