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Depositions
Depositions are sworn testimony taken out of court, to be used at court if needed. They are typically used for discovering other documents and witnesses, or pinning down a witnesses story so they cannot change it later. Sometimes they are used if a witness cannot be available on the date of the trial or if there is possibility that the witness may pass away before trial. They are taken under oath, so the same rules about telling the truth and perjury apply as for testimony in court.
Plan to arrive half an hour early, unless your attorney has instructed you otherwise. The deposition may be moved to another room and you want plenty of time to get there and find the right one. Wear comfortable clothing. But no flip-flops, revealing (low cut, midriff top, short skirt), raggedy or dirty clothing, shorts, hats, piercings (except women may wear pierced earrings), visible tattoos, or dirty hair. This is not the time for a fashion statement.
If there are multiple people being deposed at the same time, you will wait somewhere with the other witnesses. You will not be allowed to observe the other witnesses depositions. You must NOT discuss your testimony with any other witnesses or other people in the waiting area.
When you are called in, go to where the court reporter tells you to sit, usually to the side of the reporter. When answering, speak loudly, clearly and slowly. The microphone does not amplify your voice, it just records. Do not nod your head or say “uhu” or “unhu”. The recording will not pick that up clearly. You must say yes or no.
The lawyers will ask you questions. You may not ask them questions or argue with them. You may ask the lawyer to explain or simplify his question or state that you do not understand what he is asking. “I don’t understand the question. Can you make it simpler?” or “That is a really long question. Can you break it down?” Don’t do this just to be cute or evasive – that will be obvious and will damage your credibility. You may not talk over the lawyer, even if he talks over you.
This is not the time to be funny, sarcastic, argumentative or defensive. I cannot beat that drum enough. Practice being aware of the tone of your voice. It will matter when you get in front of a judge. Your credibility rises and falls on this. A stranger sitting in the back of the room should not be able to tell from your demeanor or tone if the lawyer questioning you is your lawyer or opposing counsel. Anytime you open your mouth you are not talking to the lawyers – you are talking to the judge (or the jury). Do not look to the non questioning attorney or anyone else in the room for answers -- they cannot help you or provide answers to you or answer for you.
Take a breath before you answer. That allows the lawyers to object to the question if needed. This is NOT a conversation. Once a lawyer objects, you must stop talking until the objection is resolved. Then you will be instructed by the questioning attorney to answer the question. Unless you are a party, and then your attorney may instruct you not to answer at all.
Think first. Plan what you will say and then stop. Keep your answers short. If you keep talking, you will talk yourself into a hole. Answer only the question that is asked. Concentrate on the verb. If you are asked “Do you know what time it is?” most people will look at their watch and state the time. WRONG! The answer is either yes or no. The question was “Do you KNOW what time it is?” not “What time is it?”
The opposing counsel may try to hold you to yes or no answers. Do not let this frustrate you. He who gets angry - loses. The other lawyer has the chance to come back and ask you additional questions to explain your answers. But be careful about answering yes or no if there are multiple facts or lots of adjectives or adverbs in the question. If you cannot answer yes or no to every word in the question, you can ask the lawyer to breakdown the question. Do not answer yes or no if the question asks you to or would require you to guess or speculate, unless you make it clear you are guessing or estimating. “I don’t know, but I would guess. . . .”
Remember that actual knowledge means YOU saw it, heard it, smelled it, tasted it or touched it. If you did none of these then you do not really know. The most common example is how do you know who your Father is? You don’t. You have deduced it from what you have been told and the circumstances of your childhood, but you were not there at conception, so you do not really ‘know’.
It is OK to say that you do not remember if you really don’t. Just be aware that if you don’t remember much, then what you do remember will be suspect. In other words, how could you remember just A and C, when B, D and E happened the same day? If there are documents that will help you to remember you can mention that. “It’s in my notes, but I don’t remember.” The lawyer can show you the document and ask if it refreshes your memory. If it does, then the lawyer will take the document away and continue with questioning. However, do not bring documents to the deposition unless your attorney asks you to. Note that I phrased that so the reference to notes was BEFORE the answer. This is so you can get it in before opposing counsel can object. Turn the phrase around and you can be cut off before you can indicate you have notes. If opposing counsel is questioning you, he probably won’t try to refresh your memory.
You also cannot say what anyone else (except one of the parties) told you or said.
If you are a party and another witness is being deposed, do not react to what is said. I don’t care if she says frogs fell from the sky and grass is purple. Do not scowl at the witness or talk back to her or tap your pencil, or sit back and cross your arms and roll your eyes. Do not mutter under your breath or sigh or make any noise at all. I don’t even want to hear you breath.
Plan to arrive half an hour early, unless your attorney has instructed you otherwise. The deposition may be moved to another room and you want plenty of time to get there and find the right one. Wear comfortable clothing. But no flip-flops, revealing (low cut, midriff top, short skirt), raggedy or dirty clothing, shorts, hats, piercings (except women may wear pierced earrings), visible tattoos, or dirty hair. This is not the time for a fashion statement.
If there are multiple people being deposed at the same time, you will wait somewhere with the other witnesses. You will not be allowed to observe the other witnesses depositions. You must NOT discuss your testimony with any other witnesses or other people in the waiting area.
When you are called in, go to where the court reporter tells you to sit, usually to the side of the reporter. When answering, speak loudly, clearly and slowly. The microphone does not amplify your voice, it just records. Do not nod your head or say “uhu” or “unhu”. The recording will not pick that up clearly. You must say yes or no.
The lawyers will ask you questions. You may not ask them questions or argue with them. You may ask the lawyer to explain or simplify his question or state that you do not understand what he is asking. “I don’t understand the question. Can you make it simpler?” or “That is a really long question. Can you break it down?” Don’t do this just to be cute or evasive – that will be obvious and will damage your credibility. You may not talk over the lawyer, even if he talks over you.
This is not the time to be funny, sarcastic, argumentative or defensive. I cannot beat that drum enough. Practice being aware of the tone of your voice. It will matter when you get in front of a judge. Your credibility rises and falls on this. A stranger sitting in the back of the room should not be able to tell from your demeanor or tone if the lawyer questioning you is your lawyer or opposing counsel. Anytime you open your mouth you are not talking to the lawyers – you are talking to the judge (or the jury). Do not look to the non questioning attorney or anyone else in the room for answers -- they cannot help you or provide answers to you or answer for you.
Take a breath before you answer. That allows the lawyers to object to the question if needed. This is NOT a conversation. Once a lawyer objects, you must stop talking until the objection is resolved. Then you will be instructed by the questioning attorney to answer the question. Unless you are a party, and then your attorney may instruct you not to answer at all.
Think first. Plan what you will say and then stop. Keep your answers short. If you keep talking, you will talk yourself into a hole. Answer only the question that is asked. Concentrate on the verb. If you are asked “Do you know what time it is?” most people will look at their watch and state the time. WRONG! The answer is either yes or no. The question was “Do you KNOW what time it is?” not “What time is it?”
The opposing counsel may try to hold you to yes or no answers. Do not let this frustrate you. He who gets angry - loses. The other lawyer has the chance to come back and ask you additional questions to explain your answers. But be careful about answering yes or no if there are multiple facts or lots of adjectives or adverbs in the question. If you cannot answer yes or no to every word in the question, you can ask the lawyer to breakdown the question. Do not answer yes or no if the question asks you to or would require you to guess or speculate, unless you make it clear you are guessing or estimating. “I don’t know, but I would guess. . . .”
Remember that actual knowledge means YOU saw it, heard it, smelled it, tasted it or touched it. If you did none of these then you do not really know. The most common example is how do you know who your Father is? You don’t. You have deduced it from what you have been told and the circumstances of your childhood, but you were not there at conception, so you do not really ‘know’.
It is OK to say that you do not remember if you really don’t. Just be aware that if you don’t remember much, then what you do remember will be suspect. In other words, how could you remember just A and C, when B, D and E happened the same day? If there are documents that will help you to remember you can mention that. “It’s in my notes, but I don’t remember.” The lawyer can show you the document and ask if it refreshes your memory. If it does, then the lawyer will take the document away and continue with questioning. However, do not bring documents to the deposition unless your attorney asks you to. Note that I phrased that so the reference to notes was BEFORE the answer. This is so you can get it in before opposing counsel can object. Turn the phrase around and you can be cut off before you can indicate you have notes. If opposing counsel is questioning you, he probably won’t try to refresh your memory.
You also cannot say what anyone else (except one of the parties) told you or said.
If you are a party and another witness is being deposed, do not react to what is said. I don’t care if she says frogs fell from the sky and grass is purple. Do not scowl at the witness or talk back to her or tap your pencil, or sit back and cross your arms and roll your eyes. Do not mutter under your breath or sigh or make any noise at all. I don’t even want to hear you breath.