If you or your business is involved in any sort of civil litigation, whether it is a basic collection case or a complex personal injury action, there is strong possibility that you will be required to give a deposition.
A deposition is an opportunity for opposing counsel to examine you under oath, subject to the penalties of perjury, and in presence of a court reporter. The court reporter records everything that is said and transcribes the deposition into written form to which the parties and the court can refer at a later time. Opposing counsel will also try to use this transcription to contradict you at trial.
A deposition is not a conversation, it is more akin to the examination of a witness by an attorney at trial. However, the rules governing the topics that may be inquired into during a deposition are much broader than in the courtroom. Few things are off-limits and deposition questioning can be far-ranging.
Counsel conducting the deposition has two primary goals. The first is to get information about your case. The second is to get information about you that allows him to evaluate you as a witness. This includes not only your background but also your demeanor and general appearance. Opposing counsel wants to get an idea of whether or not you will appear believable and credible to a judge and jury.
There are ten essential points to remember when having your deposition taken:
- Depositions are not conversations, therefore you should be polite, do not make small talk or tell jokes, and answer only the question that is asked.
- You cannot win your case at deposition, therefore you should give opposing counsel as little information as possible while still telling the truth.
- Take your time and think before you speak. Make sure that you understand the question before you answer.
- Keep your answers short and to the point.
- Never guess: If you are unsure of an answer say so and leave it at that.
- Do not volunteer information. If there is no question do not speak.
- Do not get angry as opposing counsel may see this as a weakness that can be exploited to his or her advantage at trial.
- Make eye contact when answering.
- Stop talking when your attorney objects and do not continue until you are directed to do so. If you continue to talk after any objection, you may inadvertently reveal information that damages your case which opposing counsel could not otherwise obtain.
- Do not disclose anything about conversations with your attorney as that information is strictly confidential and cannot be obtained through a deposition.
Keep these ten essential points in mind and your deposition testimony will strengthen your case rather than damage it.
— Mike Malin