Preparing for an Upcoming Deposition

If you filed a civil case or someone sued you or your business, you may have to sit for a deposition. You also might be deposed as a witness in someone else's case. A deposition is part of the discovery process and allows parties to understand the case's issues better.

Your deposition testimony is important. It may determine whether or not you recover any damages or whether the case will go to trial. If you present well on your behalf, the other side may consider settling the case. Preparing well for an upcoming deposition in your case is crucial.

Although answering questions under oath for several hours may sound intimidating, being prepared relieves some of that stress. This article provides general information about what to expect in a deposition. In addition, it describes how a witness can prepare for a deposition and offers examples of deposition questions.

The Deposition Process

Assuming the parties to a civil lawsuit have attorneys, one party can't communicate with the other party. A deposition, however, allows one party to ask the other a series of questions about the legal matter.

Depositions are an extremely useful tool in the discovery phase. The deponent (the person answering questions) takes an oath to tell the truth before the deposition begins. Their deposition testimony informs the opposing side of what the deponent believes occurred in the case. A deponent is also called a witness.

A deposition informs each side's case evaluations. For example, depositions often help the parties to:

• Better understand the legal issues and facts of the case: For example, in a personal injury case involving a car accident, the deponent often answers questions about how fast they were driving, the events leading up to the accident, and what happened afterward.
• Determine whether the deponent will make a good or bad witness at trial: Parties can gauge whether the deponent seems credible and whether a jury is likely to sympathize with them. This may affect whether a party tries to settle a case or take it to trial.
• Preserve or "lock in" the deponent's answers and story: If the deponent offers conflicting testimony during the trial, the party can impeach the deponent with their deposition testimony. For example, suppose the opposing party knows the deponent lied during the deposition. In that case, they may want to take the case to trial so they can impeach them.

The deponent's testimony may also provide additional information about further discovery the parties must conduct. For example, suppose the deponent in a workers' compensation case says a co-worker witnessed the events giving rise to the lawsuit. In that case, the parties may decide to depose the co-worker.

What Happens at the Deposition?

During the deposition, opposing counsel will ask the deponent a series of questions about the case. For example, suppose the defendant requests the plaintiff's deposition. In that case, the defendant's attorney will ask the plaintiff about their interpretation of the factual and legal issues.

Depositions often occur in a law firm's conference room or an attorney's office. The attendees include the witness, the party that called the deposition, their attorneys, and a court reporter. If there are other parties to the lawsuit, they will attend as well.

If you have an attorney, they will attend the deposition with you. They cannot answer questions for you, nor can they offer legal advice to you before you answer a question. They can, however, object to questions the other party asks. Your attorney will instruct you whether to answer the question if they object to it.

A deposition often lasts several hours. Under the Federal Rules of Civil Procedure, the maximum time for a deposition is seven hours. The length of your deposition will depend on the following:

• The number of questions the opposing attorney asks
• The length of your answers
• The number of factual issues in your case
• The number of parties in the case (each party can ask you questions)

A court reporter takes down everything said in the entire deposition, and they will produce a written transcript upon a party's request. A party may also request that a videographer record the deposition.

The deponent has a right to review the deposition transcript. They may want to review it if they believe they misspoke at some point during the deposition and did not correct it. The deponent can't make significant changes to their testimony. For example, they typically cannot change an answer from a yes to a no.

However, they can usually make minor changes or clarifications. If they said John Smith witnessed the events but later remembered the witness's name was John Johnson, they could request to change it. The deponent must complete an errata sheet with their changes and explain why they made the change. The specific rules for errata sheet changes vary by jurisdiction.

How To Prepare for a Deposition

Whether it's your first time sitting for a deposition or you've sat for many, being prepared is a good idea. General tips for preparing for your deposition include the following:

• Talk with your attorney about what to expect at the deposition: An experienced attorney has attended hundreds of depositions in their career and can offer you valuable legal advice about what to expect in your specific deposition. They will also give you general advice about answering questions at your deposition.
• Review relevant documents to refresh your memory on key points: For example, if you sued an insurance company over a medical bill dispute, review medical records and bills to recall important dates, specific treatments, and amounts more easily.
• Attorneys often tell their clients to answer the deposition questions with either a yes or no and not to volunteer information: It is the other attorney's job to ask questions that elicit specific responses from the witness. For example, in a personal injury lawsuit, the attorney may ask the deponent, "Have you ever had any medical treatment for your right shoulder before the date of injury in this case?" A simple yes or no answer is appropriate. If the attorney has follow-up questions, they will ask.

A deponent's attorney will tell their client not to guess when they answer a question. Because the deponent is under oath, answering a question with a statement such as, "I do not recall," is appropriate if the deponent doesn't know the answer. Again, the attorney asking the questions may ask follow-up or more narrow questions to try and get a different response.

Examples of Deposition Questions

Attorneys conducting a deposition can ask the witness anything they want so long as the question is relevant to the lawsuit. Your attorney will object to inappropriate deposition questions, but you may still have to answer.

This section describes the different types of questions you may have to answer during a deposition.

Ground Rules

The deposition often begins by ensuring the deponent understands the deposition's ground rules. For example, legal counsel taking the deposition may ask the following questions at the start of the deposition:

• "Do you understand you've taken an oath to tell the truth?"
• "Have you consumed any medication today which may affect your memory?"
• "Has anyone taken your deposition before?"

The attorney asks these questions to ensure the witness understands how the deposition process will proceed.

Background Questions

Attorneys often ask the witness general background questions. Examples of background questions include the following:

• "Where do you live?"
• "Did you graduate high school?"
• "Where do you work?"
• "Have you ever undergone any surgeries?"
• "Do you have a primary care physician?"
• "Have you ever been incarcerated?"

Attorneys ask background questions for several reasons. They want to get a general sense of the witness's credibility and memory. The attorney may also ask these questions to build some rapport with the witness.

Another reason is to figure out other avenues of discovery they may need to pursue after the deposition. For example, in a personal injury case, they may want to gather medical records from any hospital the witness ever visited.

Questions Specific to Your Case

Once the attorney has gathered the background information they need, they will ask you about the factual issues in the case. Suppose the employer and insurer call a plaintiff to testify in a workers' compensation case. The employee alleges they suffered a shoulder injury as a result of their work. The attorney for the employer and insurer may ask the witness the following questions:

• "What happened on the date of injury?"
• "Did any co-workers see what happened?"
• "When did you first feel pain in your shoulder?"
• "Did you ever have any pain or issues with your shoulder before the date of injury?"
• "What happened immediately after you hurt your shoulder?"
• "Did you keep working after the injury?"
• "Did you seek medical treatment for the injury?"
• “Did you miss any work due to your injury?"

Depending on your answers to their initial questions, the attorney may have many follow-up questions. They may also introduce exhibits, such as medical records, and ask you about the exhibit.

For example, suppose a witness testified they never had any shoulder issues before the injury. The attorney taking their deposition then produces an exhibit showing the witness sought medical treatment for their shoulders several years before the injury. The attorney will ask the witness about the treatment and how they can explain their prior testimony.

Other attorneys may refrain from producing the record at the deposition, instead waiting for the trial to try to impeach the witness. In other words, some attorneys will let a witness who lies or tells half-truths dig themselves into a hole during the deposition before trying to impeach them at the trial.

Questions? Contact an Attorney

If you've filed a civil case or someone has sued you, you may have to sit for a deposition. It helps to have an attorney by your side during a deposition, as they know when to object to the other side's questions. They can also give you specific legal advice and inform you of the questions to expect. Contact a civil litigation attorney or a personal injury attorney near you for more information.