A deposition is a question-and-answer session between the attorneys to a lawsuit and a witness. It is usually held in a lawyer’s office. Those present are:
1. the witness,
2. a court report to record your testimony,
3. lawyers for all parties to the lawsuit, and
4. the parties themselves or their representatives.
A judge does not attend the deposition and will not even review the deposition transcript unless called upon by one of the parties.
The procedure itself is straightforward. After everyone is seated and ready, the court reporter will ask you to raise your right hand and take the oath. The lawyers in the room will then take turns asking you questions, but most will be from the lawyer calling the deposition (the “opposing attorney”). The court reporter will record everything said by the lawyers and by you. This record will later be made into a typed and bound, word-for-word transcript of the questions asked and answers given during the deposition.
Depositions can seem informal. The participants drink coffee, take off their jackets, and occasionally get up and move around the room. But don’t let the informality mislead you. Your deposition is vitally important, and what you say can be used against you.
Why are Depositions Taken?
Fundamentally, lawyers take depositions to discover what a witness knows and to preserve testimony for a trial or hearing. You are being deposed for one or all of the following reasons:
1. To discover what you know about the case–the opposing attorney is searching for evidence.
2. To find evidence favorable to the other side. To this end, the opposing attorney may attempt to maneuver you into making statements against your interests.
3. To commit you to statements under oath. If you testify under oath in your deposition that something occurred on June 1, 1994, and you attempt to change your testimony later, the opposing attorney can read that portion of the deposition at the trial, thereby using your deposition testimony against you.
4. To discredit your testimony or the testimony of other witnesses through you.
Your Obligation as a Witness, and How to Deal with the Opposing Attorney
Your first duty as a witness is to tell the truth. This is your obligation even if the truth will hurt your case. Beforehand, we will review any weak spots in the case so that you’ll know how to address them if questions arise during the deposition. Most lawyers are skilled at taking depositions and will know how to make an untruthful witness very uncomfortable. If you find yourself reluctant to give a completely candid answer because it would damage our case, know that the damage is usually much smaller than that caused by a less-than candid answer.
Having said that, you must be prepared for an opposing attorney who will emphasize the strong points of his or her client’s case, ignore or try to explain away the weak points, and ridicule your story and contrive ways to suggest that you are not telling the truth or are in error. Therefore, although you must be accurate and candid, you also need to be on guard. The following 10 thoughts may help you be a good witness and avoid improper or “tricky” questions.