Don’t look upon a deposition as a stressor. Rather, look upon it as your side’s opportunity to question your opposition – or the individual responsible for your injury – under oath, before a court reporter. Everything said on record during the deposition is recorded, and that becomes the transcript, an invaluable tool for your attorney.
Depositions generally are taken for three reasons:
- It is a discovery tool used by attorneys to obtain information about you, how the accident occurred and your injuries;
- It is used to “lock your story in” so you cannot change it at the time of trial and surprise your adversary;
- It is used by counsel to evaluate your credibility and likability.
If your case does go to trial, the sworn testimony given at deposition is accorded the same weight and credence as if it were given in the courtroom. That’s why a deposition can make or break your case. If you give a strong deposition, it will help your attorney posture your case for settlement. If you give a poor performance at deposition, settlement can be more difficult. More significantly, a bad deposition, may cause your case to be dismissed before trial or make it very difficult to give a convincing testimony at trial.
The key to a strong performance during deposition is preparation. Your attorney should spend a lot of time with you before you submit to questioning by opposing counsel. He or she should review the basic guidelines of how to conduct yourself and how to best answer the questions. Your attorney should then review with you the types of questions that can be expected, and help to refresh your memory to the specific facts of your case.
The Guidelines For Deposition Testimony
First, the less you say during the deposition, the better. Remember that the deposition is not the time for you to “tell your side of the story.” Rather, it is a time to answer specific questions. It is important to remember how a deposition will be used at trial. When you testify again at trial (if it comes to that usually over one year later), you will convey the same story but will want to tell it with more details and flourish. However, everything you say at trial must conform to what you said earlier at your deposition.
If there is a conflict in your testimony, you will be cross-examined on the inconsistencies and opposing counsel will attempt to make you look either like a liar or like someone who is confused, at the very least.
Human beings rarely tell the same story twice using the same words. Lawyers work with words and will emphasize the differences in your testimony.
So logic dictates that the fewer words you have on paper (in the transcript), the easier it will be for you to testify at trial in full detail without contradicting your previous testimony.
Second, if you can answer the question asked of you with a simple “yes” or “no,” do so. If the lawyer asking the question wants more information, let him or her ask you for it. If you need to provide a brief explanation, give one. But, make it brief – one short sentence will suffice.
Third, if the lawyer questioning you asks for one piece of information, give that one piece of information. For instance, if he or she asks you what color shirt you are wearing, state the color, not where and when you bought the shirt and how much it cost. If the lawyer asks for more than one piece of information in one question, your lawyer should object to the question.
Fourth, if your lawyer objects to a question, do not answer that question until your lawyer instructs you to do so. If you do not understand defense counsel’s question, say so and he or she will rephrase the question. Never, ever guess at what a question means.
Also, never guess at the answer to a question. If you are not sure of the answer, communicate that to the attorney. If you do not remember the answer to a question, say, “I do not remember.” If you do not know the answer to a question, say, “I do not know.”
It is crucial that you understand the difference between not remembering and not knowing. If you never had the information in your brain, then you do not know. Nothing at all can be done to bring that memory back because you never had the knowledge in the first place. However, if you used to have the knowledge but have since forgotten it, then you do not remember.
Fifth, be polite and (under no circumstances) argue with the opposing attorney. It is your responsibility to answer questions. It is your attorney’s responsibility to argue with his adversary, if necessary.
Sixth, speak up. Remember, a court reporter is typing everything you say and only what you say, so you must speak your answers clearly. Nodding your head or gesturing with your hands will not be recorded in the record. Do not say “uh-huh” since the court reporter will not be able to tell whether you mean yes or no. And, let the lawyer finish asking the question before you start to answer because the stenographer can only type one voice at a time.
Finally, do not think out loud. Take your time before your say anything. When you are ready, give your short, concise answer.
