What a deposition is, and why it is important.
A pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the courtroom, usually in one of the lawyer’s offices.
If you are a defendant and there is any chance that your case may lead to criminal charges being made against you, make this known to your attorney. Your attorney will likely not want you to be deposed.
How to Establish a Good Working Relationship with Your Attorney.
There is an ongoing need to discuss with your attorney the case, witnesses, depositions of all persons deposed in the lawsuit, and trial preparation.
Get to know your attorney. And make sure your attorney knows you.
- Ask what the attorney expects to happen in the case.
- Work together to gather information and deal with the issues that come up.
- Discuss the case and learn what your attorney thinks about the case; make sure he or she understands what you think about the case.
- You should work together toward a common goal: a theory of the case that can be presented to the jury to explain what happened.
- Don’t expect your attorney to always be available.
- Let your attorney know you are interested in your case and want to know what is happening. Some people act in a way that gives the attorney the impression they are angry about the case and do not want to be bothered. It is best to clearly tell your attorney that you do want to be informed about and involved in the case.
How to communicate with your attorney during the deposition itself:
- Objections should contain hints that tell you what dangers your attorney sees in a question put to you.
- Taking a break off the record contains potential pitfalls and traps: frequent breaks can be documented in the deposition transcript, conversations can be overheard.
There are several ways to have your attorney help you correct mistakes you make during the deposition.
The Deposition Transcript: A Dangerous Document
If you are going to testify, be sure you know the following!
Settlements and trials often come years after depositions and other fact-gathering has been done. All that remains of testimony, usually in the form of depositions, are transcripts of the depositions. Therefore the transcript is of extreme importance. Statements in deposition transcripts can be read at settlement and at trial.
What is recorded in the transcript IN ADDITION TO answers to questions asked of the person being questioned:
- Off the record discussions may find their way into the transcript: this can often be prevented.
- Your private conversations with your attorney if they are heard. Ask you attorney ahead of time how to communicate during the deposition, perhaps by taking a break and going out of the room.
- Arguments between attorneys.
- Jokes: these can be dangerous traps. Don’t smile, laugh, or otherwise respond. Your “response” can be put in the deposition transcript or described at trial.
- Non-verbals: body language, gestures.
How to interact with the court reporter.
- How you speak and act can help or interfere with transcription.
- Be courteous. Make sure the reporter can see your face and hear you.
- The importance of seating arrangements: you need to interact with your attorney, and the reporter must be able to accurately record your testimony.
Deposition exhibits are important. You should make the deposition testimony and transcript relate to exhibits.
You should be familiar with ways that making drawings during your deposition can hurt your case.
The importance of reviewing and signing the deposition transcript: it is your sworn testimony, even if you fail to review and sign it. There is a proper way to correct errors in the transcript. And, your attorney must review all changes.
There are avoidable ways you may lose your right to review and correct the deposition transcript.
Critical Information Needed Before Your Deposition (and Long Before Your Trial).
There are a number of items you need to know, and document before you can even begin to prepare for your civil lawsuit deposition or trial. These are items concerning:
- Various people involved in the case
- Records
- The accuracy of records
- Issues you are not sure of
- The expected or recognized standard of performance in situations similar to that which various parties in the lawsuit faced
Some activities are actually harmful and should not be done. Harmful activities include:
- Being angry at yourself or others
- Communicating with the opposition. This will do no good and may void your insurance policy
- Discussing the case with your friends, associates, or family
Do spend time on helping your attorney understand all aspects of the case and gathering and organizing case materials. Help your attorney understand what the expected standard of care or performance would be in cases like yours. Analyze your case as to how well the standard was followed.
Another type of thing that you and your attorney must understand is what might be referred to as the standard of practice, or the standard of care. Definitions of the standard of care vary from state to state. But, in general the standard of care is defined as what professionals usually would do in a similar situation… Or, it is often defined as what the prudent professional would do in a similar situation.
In virtually every field of human endeavor, and in every kind of business, there are articles, journals, books, conferences, professors, laws, regulations, and all sorts of information about what should be done, what can be done, what’s usually done, and what the prudent practitioner would do. This is the type of material expert witnesses become familiar with. But in your case, you may be deposed long before experts are even named, so you will probably need to help yourself and your attorney to become familiar with all these various sources of information.
Timing of depositions and the importance of preparation is discussed by Mr. Judson Graves. Although speaking of physicians, the same principles apply to defendants in other professions:
“Until recent years, the importance of the initial deposition of the defendant physician was often underestimated and the experience itself was sometimes inadequately prepared for. Not realizing the importance of this early event… they did not fully prepare themselves internally for the mental and emotional rigors of actually giving their deposition.
“The adverse consequences of this scenario of inadequate or superficial preparation quickly became apparent, as increasingly capable and well-prepared plaintiff’s attorneys began to exploit this lack of defense readiness… Some of these unhappy experiences regrettably led to cases having to be settled or in their being lost at trial, simply because the deposition was so disastrous rather than because of true weaknesses in the defense case.”
See also…