• What is a Deposition and How Can I Prepare for a Deposition?

A key component in many legal proceedings occurs when someone gives a deposition. I provide my clients with a detailed explanation of the deposition and how it fits into the civil legal process. I also help them prepare for a deposition. I want to use this article to share some of that information with you. 

What is a Deposition?

A deposition occurs any time a person appears under oath to answer questions posed by an attorney. It usually occurs outside the courtroom and usually takes place in a lawyer’s office or the office of a court reporter. The deposition, also known as the Examination before Trial (EBT), allows the opposing lawyer to collect testimony from a witness that assists in the preparation of a case. The testimony taken during a deposition can be used at a trial.

In a civil case, such as a negligence or malpractice lawsuit, depositions will occur as part of the Discovery phase. The Discovery phase comes after a suit is filed and the initial papers are exchanged. Both sides begin to exchange information and that is known as Discovery.

During the Discovery Phase, both parties have the right to depose the plaintiff and defendant. If the defendant is a business, then the plaintiff has the right to depose employees with knowledge of the case. If the plaintiff is claiming medical injuries, then the defense has a right to have a doctor of their choosing examine the plaintiff; this medical examination is known as the Defendant’s Medical Examination (DME).

What the Plaintiff Wants to Accomplish in the Plaintiff’s Deposition

If you are a plaintiff in a lawsuit, your deposition is one of the critical actions in the process leading to a trial or a settlement. On the surface, the deposition is a simple process. The defense attorney will ask you questions and you answer those questions. If you do not know an answer, you can simply say that you do not know. Your attorney should accompany you to the deposition and you can talk to your attorney any time you are unsure of a question or how to answer.

When I represent a client, we want to accomplish several objectives with the plaintiff’s deposition:

  • Tell a clear and believable account about your accident.
  • Demonstrate your believability as a witness
  • Demonstrate our preparedness of the case and a potential trial

The defense attorney will try to pin down certain facts and will use the deposition to assess how you will perform as a witness at trial.

Depositions of Other Witnesses

When I depose a defense witness, I seek to do the following:

  • To learn the defense version of the case.
  • To pin down a witness on the facts so he or she cannot change his story later.
  • To learn some of the ways that the defense will defend the case.
  • To get the witness to testify to all the basic facts that we need to prove in the case, such as ownership of the building and employee status.
  • To assess the impression the witness is likely to make on the jury.

Preparing for a Deposition

You need not do much to prepare for your deposition; in fact, doing too much would not help you. So relax and do not worry. I ask my clients to do the following:

  • Do not “study.” Do not “practice.”
  • Do not read any documents or look at any material other than what your lawyer may provide in advance. If you review any records in preparation for your deposition, you and your lawyer may have to provide copies of those records to the defense.
  • Do not speak to anyone else about your case or your deposition; especially do not discuss your case with a stranger. It is not uncommon for defendants to hire investigators to observe plaintiffs and to try to glean “insider” information.

 I meet with my clients in advance to help them prepare and to answer any questions they may have.

What to Do the Day of Your Deposition

 The best thing you can do is relax. Here are some tips you can follow:

  • Make sure to get a good night’s sleep the two nights before your deposition. Being well rested will keep your mind fresh.
  • Have a good breakfast that morning. You don’t want to be hungry or distracted during your deposition.
  • Make sure you know where the deposition will be and how you will get there. Plan your route in advance. You do not want to figure out where to go and how to get there on the morning of your deposition.
  • Leave early. You want to leave plenty of time and you want to make sure that you are not rushed or stressed.
  • Do not speak to any strangers coming to or from the deposition. Once again, it is not uncommon for defendants to hire private investigators to observe plaintiffs going to or from a deposition. They will be looking to see if you are doing any activity that is not consistent with your injury (e.g., carrying heavy items, walking up and down stairs without difficulty, etc.).
  • Do not carry any heavy tote bags, knapsacks or handbags. You do not need to bring any material to the deposition and I do not want you to walk around with heavy baggage.

 What to Wear to Your Deposition

The most frequent question I receive is, “what should I wear to my deposition?” You want to dress well to make a good impression and you want to be comfortable. You do not want to wear anything that might be controversial or make a bad impression.  In general, “business casual” is the best choice. This means nice slacks and a collared shirt or dress or skirt. You need not wear a suit, but it is better to be overdressed than underdressed. Wear flat shoes or ones with a very small heel. Remember; dress as if going to court or on a business interview. You are not dressing for a wedding or a nightclub, or a casual gathering with friends.

Remember, the defendant’s attorney is going to be giving his/her impression of you to the insurance adjuster who will be deciding if they want to settle your case.  You want to display a serious impression so that the attorney will relay that to the insurance company.

The Actual Deposition

Let’s remember the objectives that we have for a plaintiff’s deposition:

  • Tell a clear and believable account about your accident.
  • Demonstrate your believability as a witness
  • Demonstrate our preparedness of the case and a potential trial

We want to establish the plaintiff’s version of events. If you are the plaintiff, we want your testimony to tell a credible, clear and concise story about the incident and your injuries and we want to make a strong, favorable impression upon the defense attorney.  We need your testimony to establish that the incident was caused by something the defendant either did or failed to do.  We also need to establish that the incident caused your injury and that your injury is serious with permanent effects.

Participants

There will be a number of people in the room during our deposition. In addition to you and me, there will be the following:

  • The defense attorney. It is possible that the defense attorney may bring a second attorney or a staff person.
  • A stenographer also known as the court reporter. He or she will administer the oath and take down the questions and answers so we can produce a written transcript of your testimony.

The Process

I usually enter the room where we will conduct the deposition with my client. There is likely to be some general introductions and some small talk. You should relax and make yourself comfortable.

The court reporter will administer an oath to you. In taking the oath, you will agree to tell the truth. If a person gives false testimony under oath, he or she could be subject to perjury charges.

The defense lawyer will begin to ask you questions. The beginning questions will be very simple such as asking you your name and address. It is likely the court reporter will ask you to spell your name.

Most of the deposition will be spent with the defense attorney asking questions and the plaintiff answering them. When the defense attorney is finished asking questions, I may ask the plaintiff some questions. I usually do not ask many questions and will do so only if there is information that I want to make sure is added to the record.

Some Thoughts about the Deposition

The deposition is a question and answer session. The attorney will ask you a long series of questions and you will answer them to the best of your ability. You need not study or do any special preparation. You need not put on a special performance; you need only act naturally and answer the questions.

That said, you should remember that we are there to put forth your claim. The opposing counsel will ask questions that are designed to undermine your claim. He or she is not your friend and does not have your interest at heart.

You need not get every answer perfect. It is okay if you do not know the answer to the question. You can say, “I do not know” or “I do not remember.” This is not a test so do not feel that you need to answer every question. Only answer the question if you have an answer.

You should listen carefully to each question and make sure that you listen to the whole question. Make sure you understand the question. If you do not, ask the attorney to repeat it or to clarify.

Do not answer right away. Pause to make sure you understand the question and the answer that you want to give. Do not blurt anything out. Do not feel rushed or pressured to give an answer.

Only answer the question you were asked. You want to answer the question asked without adding information. The question should be direct and you should be able to answer them directly with specific answers. You do not need to answer open-ended questions such as, “Tell me everything that happened that day.”

All of your answers must be verbal, meaning you cannot point at things or use your hands to demonstrate something. Remember, your testimony will be reduced to a written document, so only your words will be recorded.

You should relax and act naturally. Remember, we want to make a positive impression and your testimony can be read back at trial. Therefore, you want to make your answers clear and thoughtful.

Avoid using any slang or casual language. For example, say “yes” instead of “yeah” and say “no” instead of “nope” or “nah.”

The opposing attorney may be a nice person, maybe friendly and warm. He or she make joke with you. Remember, that person does not represent you and does not have your interest at heart.

Once the deposition begins, everything you say will be recorded as part of the transcript, so there is no “small talk” during the deposition, no matter how the other attorney acts. Attorneys often use friendliness and humor to catch witnesses off-guard.  You should be pleasant, but remember why you are there. You want to answer the questions and build your case.

I sit next my clients throughout the deposition. At any time that you do not understand a question or if you have a question about a question, you can speak to me. If I hear a question that I think is inappropriate, I will object. That is another reason why you should pause before answering a question: that will give me an opportunity to object if necessary.

The deposition can last from 30 minutes to over two hours or even longer in a very complex case. Ask for a break at any time during the deposition if you feel you need to use the restroom, get something to drink, or even just walk around.  The only time you cannot break is when there is an “open” question – if an attorney has asked a question and you haven’t answered.

Here are some Do’s and Don’ts for your deposition:

  • Do answer a question as directly as you can.
  • Don’t volunteer information.
  • Don’t answer a question that you don’t understand or that includes a word that you are unsure of its meaning.
  • Do tell the attorney that you don’t understand the question if you have any doubt about it.
  • Don’t talk to defense counsel except on the record when your lawyer is present [no chats about the weather, weekend plans or anything else].
  • Do ask for a break if you need one.
  •  Do ask to speak to your lawyer if you have a question or are unsure of something.
  • Don’t say what you “think” someone else saw or what they intended to do.  Only testify about facts – don’t guess at someone else’s motives or intentions.
  • Do be aware of “leading” questions where the attorney tries to make you give a “yes” or “no” answer to a confusing and/or compound question.  It is perfectly permissible to say that you cannot fully answer the question with merely a “yes” or a “no”.
  • Do ask the lawyer to repeat the question if your mind wanders for an instant and you’re not sure that you heard the entire question.

 What Happens After the Deposition

After the deposition is over, you should relax and congratulate yourself on a job well done. Take some time for yourself. If later that day or the next day, you have any questions, you should call your attorney. I always try to speak with my clients the next day to see if they have any questions and to see how they are doing.

After the deposition, the court reporter will type up the transcript of your testimony. Your attorney will receive a copy of the transcript. It typically takes four to six weeks to receive the transcript of the deposition.

Your attorney will send you a copy and review it with you to make any corrections or revisions. Usually, I only have my clients correct typographical or transcription errors. After you complete that review, you will sign the changes and your attorney will send a copy of that revised transcript to the defense counsel.

I hope you found this information helpful. If you or a loved one has been hurt due to the negligence of another, you may want to consult a New York personal injury attorney. I would be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New York Law Thoughts.  

Carol L. Schlitt
New York Personal Injury Attorney
http://schlittlaw.com/
1-800-660-1466
Carol@SchlittLaw.com

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.

All content of this site:
© copyright 2010-2011 by Carol L. Schlitt
The material presented in this blog may not be reproduced or appropriated in anyway without the explicit permission of the author.

3 thoughts on “What is a Deposition and How Can I Prepare for a Deposition?

  1. guest

    i am the plantiff, i had my inital deposition, now i received a letter for a court ordered deposition. what does that mean?

    Reply
    1. SchlittLaw

      We would like to help, but it is hard to tell what is happening based on your question.

      Did you already have a deposition, or was it a pre-suit hearing that may seem like a deposition? In New York, these are known as. 50- h hearings.

      If you had a deposition, the defense may want an addition deposition and may be entitled to one if new information (e.g., additional medical records) came to light.

      Who sent you the letter? What has your attorney told you?

      Reply
  2. Sam Marcus

    If a debtor in a bankruptcy case is being deposed by an attorney representing the trustee, can a creditor be present during the deposition in ny state. Thanks.

    Reply

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