It’s a common scene: you are involved in a car accident, and the ensuing litigation is at the discovery phase. Your deposition is scheduled to be taken. You’re slightly nervous – not wanting to say the “wrong” thing.
For most, the first deposition anyone experiences in their life is a very stressful experience. They are similarly paranoid about saying the “wrong” thing. A little understanding goes a long way, so that your first deposition need not be any more stressful than, say, your first colonoscopy.
A deposition consists of one or more attorneys questioning a witness, under oath, before a court reporter who records the testimony. Current technology allows video depositions. Usually a judge is not present. It is one of several devices used in the discovery phase of litigation.
Depositions have three general purposes. First, they allow one side to find out what its opponents know about the case. Second, a deposition fixes a hostile witness's story early on, before he can amend his story to fit the proof his side needs to present. It limits the amount the witness can change his story at trial. Third, it preserves testimony while memories are fresh and for witnesses who may not be available later to testify at trial.
Depositions are commonly used at trial to impugn or impeach the credibility of a witness whose trial testimony is inconsistent with his deposition testimony. It is essential that you adequately prepare for the deposition, since the transcript of the deposition can be used to show that your memory has "lapsed" or "improved" between the time of the deposition and the trial.
Your success as a deposition witness depends in large part on your mastery of effective deposition technique. It is, of course, desirable for a deposition witness to be intelligent, well-informed, articulate, and secure in the knowledge that his cause is just; but many deposition witnesses have all of these attributes and still give abysmal deposition testimony.
When such a failure occurs, the main reason is that the deposition witness does not realize that the deposition does not take place on his "home court." The witness may be someone who operates masterfully in his accustomed surroundings (the plant, the laboratory, the executive office), but the deposition takes the witness out of those familiar surroundings and puts him in the witness chair. No matter how much expertise the witness has in his profession, he will not succeed in the witness chair unless he also knows how to be a good deposition witness.
There is no mystery to being a good deposition witness. It does not depend on natural ability. It is a learned skill which depends on the conscientious application of the techniques listed below.
Your function as a deposition witness is, in most instances, purely defensive. You are not going to convince the examiner of the merits of your case; his job is trying to obtain information to prove your opponent's case.
Your attorney will be at the deposition. In most situations, his objections must be limited to the form of the examiner's questions, or to questions that seek to discover privileged information, such as attorney-client communications.
Objections to the admissibility or relevance of your testimony may be made at the trial itself. Therefore, do not be concerned at the limited participation of your counsel in the conduct of the deposition. As a general rule, the less he says at the deposition, the better the deposition is going from your standpoint.
You always have the right to stop the deposition and confer with your lawyer. But if a question is pending, the person asking the question will become very cranky if you do so mid-question.
At the Deposition
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