Regarding: What Is a Deposition, How Should I Act, and What Should I Say?
You have a deposition scheduled for XX.XX.XXXX. This is a letter explaining the deposition process. This letter is a general explanation of the deposition process and not necessarily specific to your case. If you would like greater explanation regarding depositions in your case, please, feel free to call us and ask any questions you may have. We will be happy to speak with you.
As a part of the information gathering process (i.e., discovery), attorneys are able to take depositions. During your deposition, you will be put under oath and the lawyer will ask you questions relating to this case and you will answer those questions. A court reporter will record the questions and answers. Your attorney will be present during your deposition.
There will be no judge or jury present. However, after the deposition is over, the Court reporter will create a deposition transcript by typing out all the questions and answers. You will have the opportunity to review the deposition transcript for accuracy.
If your case goes to trial, your deposition may be used in Court, particularly in cross-examination by the other lawyer should your testimony at trial be different than your testimony at your deposition. In other words, they will use it to try to prove you are lying.
The other lawyer can ask you questions that may seem as if they are none of his or her business, and that would not be admissible in court. They may not be admissible, but the Court allows this sort of questioning because it may lead the other side to information that can be used in court.
For this reason, do not be surprised if we do not object to questions that seem out of line. If the other lawyer questions you on any subject that is not proper, we will object to the question. If we object to the question and instruct you not to answer it, then refuse to answer the question. This noted, really the only time we will instruct you not to answer is when the question asks for privileged information — e.g., attorney–client discussions, discussions with a religious leader. Please answer all other questions. Sometimes we will object for the record, but may still permit you to answer. The only time you should not answer the question is when we instruct you not to answer.
You should answer all questions in an honest and straightforward manner.
We know that you would not deliberately lie, but it is important that you do not testify to something that is inaccurate or exaggerated. For this reason, please listen to each question carefully and be sure you understand the question before answering. If you do not understand the question asked, ask the other lawyer to rephrase it so you do understand the question, then answer it honestly and in a straightforward manner. If you do not know the answer, say “I don’t know.” Don’t guess or speculate at the answer. If you don’t remember, say, “I don’t remember.” No one can remember every small detail. However, you will remember the important things and should give an honest and full answer to questions on these points.
The other lawyer will probably be friendly and will not bully you in any manner. His or her theory will probably be that the more you say, the more likely you are to put your foot in your mouth. So:
- Understand the question, and take a second to think before beginning your answer.
- Answer the question truthfully and with as few words as possible.
- Stop talking.
Do not volunteer anything. Give a full and complete answer to the question asked, but do not anticipate any other question or attempt to answer it.
If you are asked a yes or no question, answer yes or no. Do not elaborate. If a question requires more than a yes or no answer, then answer with more than a yes or no. If the attorney tells you it was a yes or no question, and you feel you cannot provide a fully accurate answer by saying yes or no, say: “I cannot accurately answer your question with a simple yes or no.”
If the other attorney overlooks any relevant or important questions, that is his or her problem, not yours. We will have the opportunity to ask you questions once the other attorney has finished with his or her questioning.
If the other lawyer should be rough in any manner, do not lose your temper. We will be there with you and be certain he or she acts properly.
Speak loudly and clearly enough that everyone can hear and understand you. You must answer out loud, saying “yes” or “no,” because a nod of your head cannot be recorded by the court reporter transcribing your testimony.
- Tell the truth.
- You should be clean, and wear clean, neat clothing.
- Treat all persons in the deposition room with respect. Consider this an important occasion.
- Never lose your temper.
- Don’t be afraid of the lawyers.
- Speak slowly and clearly.
- Answer all questions directly, giving concise answers to the questions, and then stop talking.
- Never volunteer any information. Wait until the question is asked, answer it, and stop talking.
- If you can answer a question with a yes or no, do so and stop talking.
- If you feel you cannot provide a fully accurate answer by saying yes or no, say: “I cannot accurately answer your question with a simple yes or no.”
- If you don’t know, say, “I don’t know.”
- If you can’t remember, say, “I don’t remember.” Don’t guess.
- Don’t answer a question unless you have heard it and clearly understand it. If you have to, ask that it be explained or repeated.
- Don’t interrupt the other attorney when he or she is asking a question.
- If we object to a question, stop talking. We will instruct you after we object to either answer the question or not to answer it.
- After the deposition is over, do not discuss anything in the presence of the opposing lawyers or the reporter. If you want to discuss something after the deposition, wait until we are alone.
Hopefully, this letter has helped explain the deposition process. If you have any questions regarding your deposition, please call 801-685-9999.
/s/ Marco Brown