This is part one of the two-part blog series “What Happens at a Deposition?” Your deposition is the most crucial event in your personal injury case. Believe it or not, it may be even more critical than your testimony at trial. As scary as that may sound, it is a straightforward event. A deposition is nothing more than a question-and-answer session where the opposing counsel asks you questions to learn about your case. A court reporter records your testimony with a stenography machine and then creates a written transcript for trial. As long as you tell the truth, there is little to worry about. However, below is a detailed explanation with some tips for giving your best and most helpful testimony.
What is the purpose of a deposition?
Many victims and witnesses look forward to a deposition as their turn to “tell their story.” They want to treat the event as if it were their court day. However, the complete opposite is true. The deposition is not “your story” but a question-and-answer session by the opposing counsel. The opposing counsel is not the decider of fact. That is left to the judge and jury. Opposing counsel is not your friend but someone who wants to learn information about your case to later use against you.
The opposing side usually takes your deposition with three goals in mind. First, they’d like to know the facts about the lawsuit’s issues from your knowledge and possession. In other words, they are interested in your story and what it will be at the trial.
Second, they want to pin you down to a specific story so that you will have to tell the same story at the trial, and they will know in advance what your account will be.
Third, they hope to catch you in a lie, and thereby, they can show that you are not a truthful person at the trial. Therefore, a judge and jury should only believe your testimony on some crucial points.
Depositions follow a different procedure from testimony taken in court. In court, we would generally ask questions of you first. This is called “direct examination,” which will be your chance to tell your side of the story. At trial and after direct examination, the opposing attorney would ask you questions called a “cross-examination.” However, in a deposition, the opposing attorney asks all the questions first, similar to cross-examination in court.
What are the deposition rules?
When the deposition begins, most attorneys will provide you with a general statement regarding the “rules” of a deposition. You should anticipate they will say something along with the following:
- You understand that you are under oath.
- You understand that a court reporter is taking down the questions and your answers. The court reporter will type everything up in a booklet that you can review once prepared.
- I understand that because the court reporter cannot record a nod of the head or other gestures, you will need to answer each question aloud. Please remember to respond with a clear “Yes” or “No” rather than a “Yeah” or “Nope.”
- The attorney will also typically explain that you can make any corrections in your testimony when you read the booklet. However, if you change your answer (for example, yes to no), the attorney can comment on whether the case should go to trial. Because of this rule, it is essential to be as accurate as possible. Remember, no one can remember every little detail. What is at stake is your credibility. It is perfectly alright and even desirable to say you don’t remember if that is true. Sometimes, you feel like you should know something but need help remembering it. In that case, say, “I’m sorry, it’s just been a long time. I can’t remember that detail.”
- Finally, the defense attorney will frequently tell you they do not want you to guess but are entitled to your best “estimate” of time, speed, or distance. This is a real trap for the unwary, as most of us need to improve on dates, time, speed, and distance. It is common for a person to answer in a car accident or truck accident deposition to say that they were going 60 miles per hour about five seconds before the collision, and the other car was only 100 feet away. The problem with this kind of testimony is that at 60 miles per hour, a vehicle is traveling 88 feet per second. Thus, it would travel more than a hundred feet in 5 seconds, or the time was less than five seconds. For this reason, be very careful when giving time, speed, and distance estimates.
How to answer questions at a deposition
Make sure you understand. Please pay close attention to each question the attorney asks and understand it entirely before you try to answer it. If you do not understand, you should say that you do not understand the question and ask the attorney to explain the meaning before you try to answer it.
When the question is clear to you, you should answer whatever the truth. If you know the answer, then you state what you know to be true. If you don’t know the answer, you should say, “I don’t know,” because that is the truth. If the question calls for something you once knew but have now forgotten, you should say, “I do not remember,” because that is the truth. If that is true, you should not be ashamed to say, “I don’t know,” “I don’t recall,” or words to that effect.
Wait until the other lawyer finishes the question before you answer. Please don’t try to anticipate his question. You must listen, understand, respond, and stop. It is a widespread problem in depositions. Trying to answer the question before it is finished will make for a more apparent transcript, as the court reporter can’t take down two people speaking at once. It also is problematic because the attorney may have a different conclusion to the question than you thought. Likewise, by answering too soon, you should have allowed your attorney a chance to object.
Keep the other attorney from putting words in your mouth. You have answered many questions; the insurance attorney may summarize your testimony and ask you if what he says is not “substantially correct.” When an attorney does this, they may include some correct facts and other statements that need to be more precisely correct and then try to get you to say that the entire summary is substantially accurate. Don’t be misled by this tactic!
This is usually a sign of danger whenever the other attorney summarizes your testimony! If they do not summarize your testimony precisely as you have given it, you should disagree with the summary. Instead, you should say that it does not represent your testimony, and if they want to know why, you can point out the parts they have misquoted. This point returns to our primary rule that there is only one answer to any question: the truth. When people leave a deposition and feel like they were “tricked,” this is usually where it occurs. Please be careful whenever the attorney attempts to summarize.
During your deposition, you may suddenly realize you have answered a previous question incorrectly. If this happens, you should immediately interrupt the deposition and ask to correct your last reply, if you don’t mind. Although you can correct a deposition later, it is better to fix it at the deposition time.
Click here for “What happens at a deposition? Part II”
