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Nuts and Bolts of Depositions

If you are a party to a lawsuit, chances are your deposition will be required.  The attorneys at Ely & Reed have taken (ask the questions) and defended many depositions (our client being deposed).  The following guideline is for anyone who may be facing a deposition.

What is a deposition?

First, a brief explanation of a deposition.  A deposition is a question and answer session between a deponent (the person who is answering the questions) and an attorney.  The attorney asks the questions and the deponent answers the questions.  The deponent is not allowed to ask questions.  Also, the deponent’s attorney is not allowed to answer questions directed to the deponent.  The deponent is under oath to tell the truth, as if she/he was in a courtroom in front of a Judge.  Depositions are not taken in front of a Judge and they are normally not taken in a courtroom.  Depositions are usually taken at a law office or a court reporter’s office.  The people present are normally the deponent, his/her attorney, the attorney taking the deposition and the court reporter, who takes down everything that is said during the deposition.  It is permissible for any party to a lawsuit to be present as well. 

The point of a deposition is to find out what, if anything, the deponent knows concerning the facts surrounding the lawsuit.  In the context of a personal injury case, sometimes the deponent will be a party to the lawsuit, sometimes the deponent will be a witness to the accident or incident giving rise to the lawsuit, and sometimes the deponent will be an expert witness.

Important tips

The most important point to remember when having your deposition taken is to tell the truth.  Every case has strong points and weak points; your attorney is paid to deal with those weak points.  It only hurts the case when deponents lie about facts that they perceive to be detrimental to the case.  Most importantly, it is morally wrong to lie and it is a crime to lie while under oath.  So please, tell the truth.

Also, deponents should remember that the attorney asking the questions is not there to be their friend or have a casual conversation.  The attorney for the opposing party is there to elicit the testimony that benefits their client the most.  Therefore, it is important that the deponent carefully listen to each question and think before giving a response.  Clients get into the most trouble at deposition when they answer questions without thinking about their response.  It is always a good rule to repeat the question in your head before answering it.

Also, thinking before answering a question gives your attorney time to make an objection on the record.  Many times during a deposition, a question will be asked that is objectionable, either for substantive or technical reasons.  Most times, your attorney will make a vocal objection and instruct you to answer the question anyway.  However, there may be occasions where your attorney makes an objection and instructs you not to answer the question.  If that occurs, you should not answer the question.  For example, attorneys usually object when an answer to a question is if the question calls for the disclosure of confidential information, such as communications between lawyer and the client.  If you hear your attorney begin to speak, you should discontinue your answer until the objection has been made.

During the deposition it is important to give concise but complete answers.  You are under no obligation to answer questions that were not asked or to volunteer information that was not asked about.  It is the opposing attorney’s job to ask the correct questions, do not help him/her by volunteering information.  However, you should always give complete answers.  If you leave out important information from your answer, the attorney can use your previous deposition answer to undermine your credibility at trial.  For example, pretend at deposition you are asked a question about what body parts you injured during an accident.  Assume that your answer is “neck, back and head,” but in reality you also injured your leg.  However, at trial, you testify that the accident injured your head, neck, back and leg.  Even though this is the truth, the attorney for the other party will read your previous deposition testimony regarding the injuries to the jury in order to undermine your credibility.  Remember, be clear, concise and complete in your answers.

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Depositions can be one of the most intimidating parts of a lawsuit.  If you would like to discuss your case with an attorney, please contact us

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