When a lawsuit is initiated, the parties have the right to conduct a formal investigation to obtain more information about the case before the trial begins. This process is known as “discovery”. There are several different types of discovery. Some of the most common include document requests, written questions (interrogatories), and the oral statements of witnesses, also known as “depositions.”
A deposition is similar to testifying in court, except that there is no judge or jury present. It is an oral statement that is provided by the witness under oath, and it has two primary purposes; to learn what the witness knows, and to preserve the testimony of the witness. The deposition is intended to provide the parties with all of the facts before the trial begins, so there are no last-minute surprises. Depositions allow each side to find out who all of the witnesses are and what they will say at trial.
Depositions do not take place at the courthouse. Usually, they are taken at the office of one of the attorneys. A court reporter is present at the deposition to record a word-for-word transcript, and some are videotaped. During the deposition, the attorney asks a series of questions about the deponent’s knowledge of the facts of the case. In some cases, there may be limitations on what subject matter the attorney is allowed to ask about.
The deponent does not ask any questions, they are only required to answer truthfully all appropriate questions that are asked. The deponent can also have his/her attorney present for the questioning. Depositions can be for as short as 10 or 20 minutes if the attorney only has a handful of questions for the witness. On the other extreme, they can potentially go on for several days if a witness is more deeply involved with the case.
Depositions can be a nerve-wracking event for witnesses being questioned, especially if they have very little prior litigation experience. There is a very good reason for this. Depositions are very serious, and numerous cases have been won and lost over a few careless words by a witness who was not properly prepared.
Preparing for a deposition is a team effort between you and your attorney. Your attorney should advise you beforehand about the details (e.g., time, location, specific purpose, etc.), how you should conduct yourself, and how to prepare.
Here are some important things you need to know in preparing for a deposition:
It is of the utmost importance to take plenty of time to prepare and practice for your deposition. Your lawyer should provide you with a series of questions you are likely to be asked. You may not get those exact questions when you are deposed, but they will probably be similar. You can practice with your attorney, on your own, or both. The more time you spend practicing, the better the chances of a successful outcome.
Remember when you are answering questions that you are not there to convince anyone of the strength of your argument or how great your claim is. You are there to provide information in the form of answers to the attorney’s questions, that’s it. With this in mind, provide clear and direct answers. Avoid rambling and giving long explanations. Remember that you are under oath, and everything you say will become part of the case record. Be polite, but only provide answers to the questions you are asked.
Though your words are not intended to persuade, a good impression can be helpful in establishing your credibility and likeability. As mentioned in the previous point, be polite and respectful to the opposing counsel. Do your best to maintain your composure and not become angry or irritated, even when you are asked a question you do not like, or you are offended by. Be on time, dress nicely, and give the opposing counsel every reason to believe that you are a respectable and credible witness.
Answer the questions accurately and truthfully to the best of your ability. Avoid making guesses or giving the opposing counsel any other opportunity to claim that you were not truthful. This may mean answering some questions with “I don’t know” or “I don’t remember”. It is much better to say you don’t know or don’t remember than to make something up. Also, be careful about providing absolute answers unless you are totally certain about your answer.
Along these same lines, be sure to listen carefully to the entire question before answering. In addition, if the attorney presents documents or other information about a question, be sure to review the information thoroughly before you give your answer. Finally, if, during the course of the deposition, you realize that you made an error with one of your answers, inform your attorney so the record can be corrected or supplemented.
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