By WORLDLawDirect [March 1st, 2015]
What a deposition is, and why it is important.
A deposition is ". A pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the courtroom, usually in one of the lawyer's offices. A transcript - word for word account - is made of the deposition. "
"Depositions are the key to successful trial preparation. You can win a case by eliciting a good answer. You can lose a case through a slip of you client's tongue."
Civil versus criminal cases
If you are a defendant and there is any chance that your case may lead to criminal charges being made against you, make this known to your attorney. Your attorney will likely not want you to be deposed.
Depositions are mostly taken in civil (money damage) cases. In criminal cases, depositions of defendants and people who may become defendants are less likely to occur. In civil cases, the opposition has the right to obtain damaging information from defendants. In criminal cases, the defendant has a right to refuse to incriminate himself (or herself). This was highly publicized in the O.J. Simpson case in which the defendant was not deposed and said very little throughout many months of the criminal trial. Before the civil lawsuit came to trial, however, the defendant had to endure many long hours of sworn deposition testimony.
Deposition versus trial testimony
Deposition testimony is very different than trial testimony. This article is concerned with deposition testimony only.
How to Establish a Good Working Relationship with Your Attorney.
There is an ongoing need to discuss with your attorney the case, witnesses, depositions of all persons deposed in the lawsuit, and trial preparation.
Get to know your attorney. And make sure your attorney knows you.
- Ask what the attorney expects to happen in the case.
- Work together to gather information and deal with the issues that come up.
- Discuss the case and learn what your attorney thinks about the case; make sure he or she understands what you think about the case.
- You should work together toward a common goal: a theory of the case that can be presented to the jury to explain what happened.
- Don't expect your attorney to always be available.
- Let your attorney know you are interested in your case and want to know what is happening. Some people act in a way that gives the attorney the impression they are angry about the case and do not want to be bothered. It is best to clearly tell your attorney that you do want to be informed about and involved in the case.
How to communicate with your attorney during the deposition itself:
- Objections should contain hints that tell you what dangers your attorney sees in a question put to you.
- Taking a break off the record contains potential pitfalls and traps: frequent breaks can be documented in the deposition transcript, conversations can be overheard.
There are several ways to have your attorney help you correct mistakes you make during the deposition.
The Deposition Transcript: A Dangerous Document
If you are going to testify, be sure you know the following!
Settlements and trials often come years after depositions and other fact-gathering has been done. All that remains of testimony, usually in the form of depositions, are transcripts of the depositions. Therefore the transcript is of extreme importance. Statements in deposition transcripts can be read at settlement and at trial.
What is recorded in the transcript IN ADDITION TO answers to questions asked of the person being questioned:
- Off the record discussions may find their way into the transcript: this can often be prevented.
- Your private conversations with your attorney if they are heard. Ask you attorney ahead of time how to communicate during the deposition, perhaps by taking a break and going out of the room.
- Arguments between attorneys.
- Jokes: these can be dangerous traps. Don't smile, laugh, or otherwise respond. Your "response" can be put in the deposition transcript or described at trial.
- Non-verbals: body language, gestures.
How to interact with the court reporter.
- How you speak and act can help or interfere with transcription.
- Be courteous. Make sure the reporter can see your face and hear you.
- The importance of seating arrangements: you need to interact with your attorney, and the reporter must be able to accurately record your testimony.
Deposition exhibits are important. You should make the deposition testimony and transcript relate to exhibits.
You should be familiar with ways that making drawings during your deposition can hurt your case.
The importance of reviewing and signing the deposition transcript: it is your sworn testimony, even if you fail to review and sign it. There is a proper way to correct errors in the transcript. And, your attorney must review all changes.
There are avoidable ways you may lose your right to review and correct the deposition transcript.
Critical Information Needed Before Your Deposition (and Long Before Your Trial).
There are a number of items you need to know, and document before you can even begin to prepare for your civil lawsuit deposition or trial. These are items concerning:
- Various people involved in the case
- The accuracy of records
- Issues you are not sure of
- The expected or recognized standard of performance in situations similar to that which various parties in the lawsuit faced
Some activities are actually harmful and should not be done. Harmful activities include:
- Being angry at yourself or others
- Communicating with the opposition. This will do no good and may void your insurance policy
- Discussing the case with your friends, associates, or family
Do spend time on helping your attorney understand all aspects of the case and gathering and organizing case materials. Help your attorney understand what the expected standard of care or performance would be in cases like yours. Analyze your case as to how well the standard was followed. Another type of thing that you and your attorney must understand is what might be referred to as the standard of practice, or the standard of care. Definitions of the standard of care vary from state to state. But, in general the standard of care is defined as what professionals usually would do in a similar situation. Or, it is often defined as what the prudent professional would do in a similar situation.
In virtually every field of human endeavor, and in every kind of business, there are articles, journals, books, conferences, professors, laws, regulations, and all sorts of information about what should be done, what can be done, what's usually done, and what the prudent practitioner would do. This is the type of material expert witnesses become familiar with. But in your case, you may be deposed long before experts are even named, so you will probably need to help yourself and your attorney to become familiar with all these various sources of information.
Timing of depositions and the importance of preparation is discussed by Mr. Judson Graves. Although speaking of physicians, the same principles apply to defendants in other professions:
"Until recent years, the importance of the initial deposition of the defendant physician was often underestimated and the experience itself was sometimes inadequately prepared for. Not realizing the importance of this early event. they did not fully prepare themselves internally for the mental and emotional rigors of actually giving their deposition.
"The adverse consequences of this scenario of inadequate or superficial preparation quickly became apparent, as increasingly capable and well-prepared plaintiff's attorneys began to exploit this lack of defense readiness. Some of these unhappy experiences regrettably led to cases having to be settled or in their being lost at trial, simply because the deposition was so disastrous rather than because of true weaknesses in the defense case."
Rehearsing for Legal Testimony: Why and How to Do It.
Be sure to do the following when preparing for Trial or Deposition:
- Practice answering questions, especially questions presented in the confusing ways described in the part of this Website that covers deposition tricks and traps.
- Make and use audio tapes to present questions to you.
- Discuss with your attorney all major issues, as well as questions you are not sure how to answer.
- Use video tape to review your responses.
- Gain further insight into difficult questions and issue by repeated practice and reflection over time.
- Set aside time over many months for practicing, reviewing and updating your thinking.
- Prevent the lawsuit from wearing you down and harming your health.
- Be prepared: be totally aware of the background information, facts of the case (what happened), the testimony of others, and the expected standard of care or performance.
Even expert witnesses experienced at testifying will have trouble if they do not practice and review the specific issues of each case in which they testify.
Things to avoid:
- Involving your spouse and friends in practice sessions
- Keeping records and tapes of practice sessions
- Being upset if your performance is not perfect
Allowing practice for the deposition and other case-related activities interfere with your family life
Tricks and Traps in Legal Questioning
To some degree, difficult and tricky questions are justified. Tricks and traps are sometimes necessary to:
- Make the facts understandable to a variety of people with different backgrounds
- Resolve complex issues
- Make it difficult for dishonest witnesses to lie
- Put new light on situations
The goal of going over the many ways questions can be made difficult and tricky is to allow you to recognize what is occurring when these tactics are used. This recognition will make it easier for you to remain truthful in your answers, despite confusing language and the other factors to be discussed. Your attorney must be consulted when deciding how these principles apply to your case.
Before your deposition, you should practice answering difficult and tricky questions.
Types of questions that are tricky and may contain traps are questions that:
- Contain poorly defined terms: "Isn't it true that the account was doing fine until that contract was signed?"
- Contain emotionally charged terms: "Mr. Jones was unreliable, wasn't he?"
- Ask: "Is that all?"
- Demand a Yes or No answer.
- Ask: multiple questions.
- Lead you: "Wasn't that a proper course of action?"
- Are argumentative: the question disputes previous answers more than once or twice.
- Assume facts not in evidence. For example, "What did you do when you saw the client get worse after three days of your treatment?". Assumed facts: (1) The client really did cooperate with the three days of treatment; (2) The client really did get worse; (3) You really did see the client getting worse.
- Define proper conduct or professional performance.
- Ask what publications you: read, rely on, trust, or consider authoritative.
- Are hypothetical.
- Are not specific enough, or ask for a narrative answer.
- Misquote you or someone else.
- Ask you testify as to the accuracy of something you heard or read. hearsay evidence.
- Are complex, ambiguous, or contain double negatives.
- Ask you to speculate or comment on things you are not sure of.
- Ask you for rough (or your best) estimates of quantities you are not sure of.
- Ask you if your testimony is based entirely on written records, concerning issues you cannot remember anything about.
- Make a false statement.
- Seek to place blame.
- Try to make you a mind reader: "Why did the driver turn when he did?"
- Use words or phrases with specific legal meanings: standard of care, basis for opinion, proximate cause, breach of duty.
- Ask you to judge another person. There is a way to objectively describe persons without seeming to be critical.
- Use words having several meanings. For example, in law, there are specific meanings of the words possible, probable, following, and likely. These are not always the same as the common or the scientific meanings of these words.
- Refer to inaccurate, unfamiliar or unknown documents.
If you are a defendant, you probably do not want your deposition videotaped: Depositions are long and pressured. It is difficult
to look good on video.
Technical problems can interfere with sound and video pickup. Many of these problems are under the control of the witness.
A variety of problems are caused by videotaping. These problems are well described by Mr. Mark Neubauer, an associate editor of the publication Litigation:
"A key weapon at a videotaped deposition is surprise. By the time of trial, both the lawyer and the witness know most of the facts and strategies. Reams of depositions have been produced and reviewed. And then there are the burdensome interrogatories and boilerplate requests for admissions. There are rarely any surprises. Everyone knows everything, and the trial proceeds predictably.
"A videotaped deposition often occurs before all of that discovery, many times at the earliest stages of the litigation. For that reasons, a witness can be caught unprepared. A key undisclosed document or an unexpected question can force a harmful admission. The written transcript will never show the looks of perplexed consternation or shocked embarrassment the camera captures. That portrayal of surprise, which every trial lawyer prays for at trial, can and often does happen on videotape."
Legal Testimony by Telephone
This section describes and tells how to deal with the problems, and the advantages, of telephone testimony, especially depositions. These factors are discussed by Ashley Plunkett in the publication, The Practical Litigator:
The most common reason for taking a phone deposition is that the witness is unavailable in person or cannot travel because of physical limitations. Several disadvantages of a telephone deposition include:
- High possibility of mechanical malfunction (unable to clearly hear or being disconnected);
- High probability of recording mistakes due to inability to hear either on the part of the court reporter or the witness, and
- Inability to observe non-verbal expressions or body language.
The advantages of telephone depositions might include:
- Preventing opposing counsel from harassing or bullying your witness;
- Minimizing travel costs for your witness;
- Enhancing witness control, and
- Added control over your witness.
Experts and Other Witnesses
Helping your attorney deal with experts and other witnesses can make or break your case.
Helping your attorney prepare questions for the opposition's experts can be quite effective. If your attorney knows what the expert plans to say, you can provide literature that shows the expert is wrong. Your attorney can then confront the expert with this material at the the expert's deposition.
If you must testify in a lawsuit, you will want to know much of the information experts need to know when they testify.
Even if you are not going to be an expert, you want to know much of the information experts need to know if you are to testify. Reasons:
- You need to be able to evaluate the adequacy of how your experts are performing.
- You are likely to be asked questions in your deposition that are similar to the questions usually asked of experts.
- You need to evaluate and deal with (through your attorney) the actions of the opposition's experts. If you were to communicate with an expert, that communication would probably be discoverable. You would be required to answer questions about the interaction, as would the expert.
- If you are a defendant, you are likely to be deposed before the experts in the case. The reason is that your testimony will provide many of the facts of the case the experts base their opinions upon. Therefore you must perform tasks usually thought of as the tasks of an expert witness: you must analyze the case, know the relevant technical or background literature, and have a good understanding of the expected standard of care or performance, long before the experts give their testimony.
- Attorneys may try to discredit you in many of the same ways they try to discredit expert witnesses. There are a number of ways attorneys discredit witnesses.
A number of tactics are sometimes used by attorneys to suggest an expert (or other) witness is not qualified or is dishonest. Many of these tactics involve giving reasons the witness should not be trusted. Often, these reasons are just not valid. Still, it is good to know of such tactics and think about how you might respond to them if they are applied to you.
Time Pressures During Lawsuits
Time pressures before, during and after the deposition can wear down all parties in a lawsuit. Time management is a critical issue.
Lawsuits often drag on for years. It is important to focus a relatively small amount of time on certain critical tasks before the deposition and trial, and put the lawsuit out of your mind the rest of the time.
Your deposition should be scheduled to not interfere with your work schedule. If a major event is to occur in your family or job on a certain date, having the deposition around that time is not a good idea. If you are working the night shift, a 9 a.m. to 4 p.m. deposition will not work.
During the deposition attorneys may waste time and frustrate you. However, perspective on the possibly high stakes game going on can give you determination to respond to such time pressures properly.
Repetitive questions may frustrate you, but relax. The repetitious questions provide no new information to the opposition and may wear out the opposition. Other questions that may lengthen the deposition and frustrate you are questions that contain poorly defined terms, or are multiplex, complex, or leading. Instead of becoming angry, take your time. Think about the question. Then ask that the question be restated or otherwise say why it was not clear. Most likely the attorneys have a time past which they do not want to stay. The less information they get out of you before then, the better off you are.
Recognize the different between time wasted and time well spent. The tapes help you make this distinction.
Physical Discomfort During Legal Questioning
Physical discomfort during legal questioning, including the deposition, can impair your performance. This fact can be used by the opposition. Factors that can cause physical discomfort include:
- deposition length
- time of the day
- smoking (or inability to smoke) in the deposition
- seating arrangements
- background noise
- your physical conditioning
Long hours of questioning will go better if you are in good physical condition.
Many people tend to do less exercise and to eat excessively when faced with an upsetting, time consuming, chronic stress such as a lawsuit.
One benefit that can be derived from being sued or taking any part in a lawsuit is that you can become determined to improve your physical conditioning and health. This improvement in physical health can improve the quality and length of your life.
All exercise and other health improvements must be done over many months, and with the close supervision of your personal physician. So, start early.
Psychological Warfare During Legal Questioning
Psychological pressures occasionally force the truth from some dishonest witnesses, so the process may be justified to some extent. Some attorneys believe that provocation, intimidation, and distraction are necessary elements of questioning. Other attorneys are more easy-going, getting the deponent to relax too much and speak too freely. In either case, it is important to recognize psychological pressures for what they are.
If you are provoked, feel intimidated, or become angry, use the excess energy. The energy can be used to make you more determined, rather than causing you to become nervous or depressed. Become determined to answer questions even more carefully.
Anger and other emotions can cause you to make inaccurate statements or rude comments. These statements may be taken out of context and quoted to the jury at trial.
Guilt-causing questions are often not questions concerned with the facts of the case. Rather, guilt-causing questions are often questions that imply the witness is poorly trained, has inadequate experience, or is unsure of his or her testimony. There are standard lists of such questions that attorneys can ask.
There are many anxiety-provoking tactics that can be used. These are discussed on audiotapes that are available.
The timing of questions is sometimes important. For example, it may be possible to catch the witness off guard at the very beginning of the deposition with a key, difficult question. Or, complex questions may be brought up after many hours when the witness is tired. The important thing to remember is that important questions can come at any time.
Therefore, as with may issues, it is better to not worry about tactics, timing, and a deep analysis of what is going on. Your ability to just realize that some sort of tactic is being used can be valuable. It is best to take one question at a time, consider the question fully, and give an accurate answer.
Avoid Giving Too Much Information to the Opposition During Legal Testimony Attorney Lawrence K. English writing in Machine Design describes a problem common to people in most professions, including engineering:
"The idea. is to only answer the very precise question put before you. The biggest problem for an engineer is only answering the question actually posed, rather than providing the plaintiff's attorney with an education.
"For example, if the plaintiff's attorney asks you 'Do you know what time it is?', your answer must always be either Yes or No, however much you want to tell him what the time is.
"Quite naturally, this way of answering questions often rubs engineers the wrong way. All of your experience urges you to get to the bottom of things, to find out what really happened. What really happened, however, is the province of your company's attorneys. That is, if and when your story needs to be told, it will be told through controlled direct examination at trial under the watchful eye of your own company's attorneys when it is harder for the plaintiff to use it against you."
Situations that suggest you should think carefully about limiting the amount of information you give out include (the audiotapes discuss these):
- When your attorney objects to a question put to you
- When questions are asked repeatedly
- When questions are too general or broad
- When questions contain terms such as always and never
- When the questioning attorney meets your answer with silence and a look suggesting you need to say more
Also, in order to limit the information obtained by the opposition, you should be aware of and control your body language.
You must plan ahead to avoid potential disasters that can provide excess information to the opposition. These situations stem from the opposition being able to:
(1) Ask you under oath for the names of people you have discussed the case with (2) Search your pockets, briefcase, and what ever else you have brought to the deposition
Lawsuit Traps that Catch You After You Testify
Actually, just about anything you say or write can be brought up at settlement or in court. Statements you make to anyone can be repeated. Your statements in depositions, and anything you write, can also be brought up and used against you.
Some items, however, are very likely to cause trouble over time, as discussed below.
The opposition may be looking for motives to explain why you wanted to damage the plaintiff. You will probably not be asked if you liked the plaintiff or why you did not like the plaintiff. However, if some statement you make or agree to implies that you did not like the plaintiff, the statement can be read to the jury. Your motive has been exposed!
The opposition may find out what sets you off or makes you angry. Most people become ineffective witnesses when angry. And, if the jury sees you driven to anger, your self-control is brought into question.
Inaccurate and inconsistent statements will be sought for in your deposition transcript. Computerized indexes will be made. Experts will review the transcript. When you go to court, you need to know everything you said, and did not say, about every issue in the case.
Some answers change over time. This is because resources, information, and even supposedly "scientific" facts, change over time. These changing items include: the published literature concerning professional activities, laws, court decisions, rules, regulations, and policy and procedure documents. Also over time there are changes in available machinery, instrumentation, materials, treatments, and medications. Therefore answers at trial, years after a deposition is taken, may need to be different. There are ways to take such changes into account in your testimony, and the audiotapes discuss these issues.