How To Give Your Deposition: Tips and Mistakes

This article provides comprehensive information on what deposition is and how you can prepare to give a deposition. It also offers practical advice that can help you provide clear and effective responses.

Giving a deposition can expose you to certain legal risks. Prepare for your testimony with the help of a civil litigation attorney to avoid missteps.

How Will the Deposition Work?

A deposition is an out-of-court statement by a witness taken under oath. It’s part of the discovery process, and the opposing attorney will often ask you various questions. The purpose is for the parties to gather information they can use during the trial. The person answering the questions is called a deponent.

Often, only a few people are present in the deposition process:

• The deponent
• Attorneys for all the parties involved
• A person qualified to administer oaths

The deposition’s subject matter often revolves around the factual circumstances surrounding the case.

Two Types of Deposition

Opposing counsel can conduct depositions orally or in written form. This section explains these forms of deposition in detail.

Oral Depositions

In the out-of-court testimony, the deponent provides oral testimony in response to deposition questions posed by the opposing party. A stenographer usually creates a deposition transcript, but electronic recordings are becoming more common.

During the process, all parties can ask the deponent questions. The lawyer’s authority to object to the questions is limited; they can’t coach their clients when answering them. This form of deposition is crucial when capturing the witness testimony and observing their possible demeanor during cross-examination.

Depositions are often treated as hearsay and are inadmissible during trial. But three exceptions to the hearsay rule may apply to deposition testimony:

• When the testimony given by the deponent at trial contradicts their answer in the deposition
• When a party to the case admits something in the deposition that is against their interest
• When the deponent isn’t available during the trial

Written Depositions

The deponents may also receive a question in the form of a written transcript. So, instead of the in-person deposition, the parties provide the deponents with written questions in advance. The deponent answers the questions under oath. A notary public or a court reporter is often present to ensure the answers are appropriately sworn.

The parties often use written depositions when oral deposition is impractical. For instance, the party or the witness lives too far away to appear in person, or it’s the witness’ first time being in the legal proceedings.

Purpose of a Deposition

A deposition is a helpful tool in legal proceedings. Both parties use them to gather information and prepare for trial. During a deposition, opposing counsel aims to understand everything the deponent knows about the legal issues in the lawsuit. This process helps them prepare for your possible testimony during the trial.

It’s important to remember that the rules for conducting a deposition may vary in every jurisdiction. Rule 30 of the Federal Rules of Civil Procedure governs oral depositions, and Rule 31 governs depositions through written questions.

Both parties can also depose an expert witness. This happens in particular if the subject matter of the case involves complex legal issues.

Always Tell the Truth Under Oath

Courts require cases and decisions to be based on factual information. As such, they heavily penalize anyone who lies under oath. Failure to tell the truth in a deposition constitutes perjury, which is a felony. It can also damage your case if the truth comes out at trial.

If there is a question you don’t want to answer, there are better alternatives to giving a false statement. In many cases, the best option is to simply be honest — without adding extra information. You’ve probably heard about pleading the fifth to avoid self-incrimination in criminal trials, for example. But civil cases involve different considerations for testifying.

While your attorney can’t give you an exact answer to say, they can help you understand how to handle any difficult questions during your deposition. A little preparation can help prevent potentially serious gaffes.

Tips To Prepare for Your Deposition

The following are suggestions to help you prepare to give your deposition:

• Listen to the question. For oral depositions, don’t answer any question unless you hear it clearly and thoroughly. You may ask the attorney or the court reporter to repeat a question.
• Understand the question before answering. Do not answer any question unless you understand it. You may ask the attorney to explain or rephrase the question until you comprehend what they were asking.
• Pause after each question. This allows you to think about the question and respond appropriately.
• Consult your attorney before and after the deposition. You can also consult your answers with your attorney before the start of the deposition process and once it ends. But, while the deposition is happening, you’re generally not allowed to consult with your attorney on how to answer the questions. This helps ensure that your attorney does not influence your testimony, which would be a form of legal misconduct.
• Remain calm and polite. Do not lose your temper no matter how hard the questioning attorney presses you. You may play into the other side’s hands if you lose your temper. Do not argue. Speak in the same tone and manner that you would speak to your attorney.
• Be aware of estimations. If you must estimate distances or time in any of your answers, explicitly state that your response is an estimate.
• Be careful when quoting others. If you are testifying about a conversation you had in the past, make it clear whether you are paraphrasing comments or quoting what was said.
• Bring copies of the requested documents. The opposing counsel may have instructed you to produce documents at your deposition. If so, you should bring three copies of the documents. You will provide one copy to opposing counsel, you will keep one copy, and your attorney will keep one copy. You should also bring the originals to prove the accuracy of the copies.
• Admit to your mistakes. If, at any time during the deposition, you realize you have given an erroneous answer or you have misspoken, correct your mistake as soon as you recognize it. You should tell the opposing counsel or your attorney about your mistake first.

What Shouldn’t I Say During a Deposition?

Below are a few tips about common deposition mistakes to avoid:

• Don’t always accept opposing counsel’s statements or questions. Do not let the opponent put words in your mouth. Pay particular attention to the question. Don’t accept opposing counsel’s summary of your testimony unless it is entirely accurate.
• You aren’t expected to know all the details. If you don’t know all the details, relax. State what you know and leave out the details you do not know. Do not give an answer requiring you to consult records not available at the deposition or consult your friends and associates for the answer.
• Don’t reveal the content of your discussions with your attorney. You don’t need to respond if asked what you discussed with your attorney. The attorney-client relationship makes discussions with your attorney confidential.
• No jokes. Never indulge in humor when responding to a deposition. During the answer session, avoid wisecracks and obscenities. Your humor may not be recognizable in the transcript and could look crude or untruthful.
• Minimize speaking with opposing parties or counsel. After the deposition, try to minimize chatting with the questioning attorney. Do not let their friendly manner cause you to drop your guard or become chatty, as you may reveal something important to your case.
• Don’t speculate. Do not form an answer based on estimations, guessing, predictions, feelings, and other musings that can’t be verified or are not based on your personal knowledge.
• Don’t provide opinions or conclusions. Do not provide opinions or findings unless you are an expert witness.
• Don’t volunteer information. Do not give more information than is necessary to answer the question. Stop talking once you have responded to the question.
• Don’t explain. Never attempt to explain or justify your answer. You’re there to state what you know. You are not expected to justify your knowledge of the facts. If you try to explain, the attorney may believe that he or she has reason to doubt the accuracy or authenticity of your testimony.
• Don’t prepare notes, documents, or diaries. You can’t use notes, diaries, or other documents to assist you during your deposition unless your attorney approves the document.

How you conduct yourself during your deposition can make or break your case. Be aware that your deposition can also provide your opponent with information they can use againstyou at trial. Be cooperative, but always be mindful not to volunteer more information than you must. Also, remember that you may consult your attorney at any time during your deposition.

Consult a Legal Professional

It’s helpful to be ready if you are preparing for an upcoming deposition. A litigation and appeals attorney can give you helpful legal advice as you prepare for your deposition answers. Having a defending attorney by your side also boosts your confidence when handling the deposition questions. Consult a litigation attorney near you to learn more.