Preparing for Your Deposition

How to Prepare for a Deposition

How to Testify at a Deposition

If you are about to have your deposition taken in a lawsuit, you need to know that this is likely the most important pre-trial aspect of the case.

Let me begin with a very basic discussion of how a deposition is taken and used.  A deposition is much like testifying in court, but with no judge there to decide any disputes.    The witness is asked questions under oath, and must answer those questions in most instances.  A court reporter takes down everything that is said during the deposition, and types up a transcript.  The witness is provided with a copy of that transcript in a week to ten days, and can actually make changes to their testimony.  (Only their testimony.  I’ve had some clients who didn’t like the questions, so they wanted to change those as well.)

“What’s the point of giving answers under oath if you can just turn around and change them after the deposition is over?”, you might ask.  No one gets upset about minor gramatical changes, or revised answers that make the answer a little clearer, but if you make any material changes, the attorney is permitted to ask you about that change at trial.  Those type of changes make you look really bad.  It makes it look like you were lying at the deposition.  And if the change is significant enough, the attorney can bring you back for another deposition to deal with the change.

For example, say you are suing for breach of contract.  At your deposition, the attorney for the defendant asks if the agreement between the parties was written or oral, and you answer, “oral”.  The attorney then moves on to the terms of the contract and spends no time asking you about the written agreement, because you testified there was strictly verbal.  Later you get the transcript, and you change the answer from “oral” to “written”.  A drastic change like that would certainly justify bringing you in for another deposition, because now the attorney needs to ask all the questions about the written agreement that he did not ask based on your answer.

Incidentally, that fact pattern serves as a perfect example of how you would be asked about the change at trial.  If the attorney did not bring you back for another session, he could destroy you at trial based on the changed testimony.

“Ms. Jones, you testified at your deposition, under oath, that the agreement was oral, isn’t that correct?”

“Well, yes, but, I changed that later to say that it was written.  You told me I would be able to review and change my deposition, so I did.”

“Yes Ms. Jones, but didn’t I also tell you that you were testifying under oath and could conceivable go to jail if you lied?”

“Yes, but . . .”

“And didn’t I also tell you that you needed to be as clear as possible with your answers, and that if you did not understand any question I asked you, I wanted you to ask me to rephrase the question?  I have the deposition transcript hear if you want me to show you that discussion.”

“No, I don’t need to see it, you did tell me that.”

“So how is it, Ms. Jones, that you very clearly stated at your deposition that the agreement between you and Mr. Smith was a verbal agreement, but later, and now again at court, you are saying that the contract was in writing?  Were you lying then or are you lying NOW?!”

And even without this cliche line of questions, a change like that would almost certainly destroy your chances at winning.  The closing argument would go something like this:

“Ladies and gentlemen of the jury, Ms. Jones is here, crying, tissue in hand, saying that my client entered into an agreement with her whereby she would be a 50% owner in the dance studio.  She says that 50% interest is worth $575,000, and wants you to enforce that contract and order my client to write a check for more than half a million dollars.  But she can’t even say if that agreement was verbal or in writing.  When she was asked that $64,000 question — or should I say $575,000 question — she answered UNDER OATH that the agreement was strictly verbal.  But then after she thought about it awhile, she must have thought, ‘Oh, that doesn’t seem very plausible that the agreement would be verbal, so I’ll just say it was in writing.’  Obviously Ladies and Gentlemen, she is willing to say anything to get that money.  Don’t fall for it.  If she can’e even decide whether the contract was verbal or in writing, how can you enforce this — ‘maybe it’s written, maybe it’s oral, maybe it was for 50%, maybe it was for 20%, or MAYBE I JUST MADE THE WHOLE THING UP — contract?”

So, as you can see, you are permitted to change your answers, but God save you if you do.

Fortunately for parties everywhere, most attorneys have no idea how to use a deposition transcript.  I’ve been to court hundreds of times, and I can count on one hand the number of opposing attorneys I’ve seen who properly used a deposition transcript at trial.  I’m sure not going to teach them here how to do it the right way, but understand that you may sit through days of a deposition and then never see that transcript at trial.

And on the subject of using a deposition transcript, understand that it is only used to contradict your prior testimony.  I’ve seen many attorneys stand up for examination and ask the court if they can read the witness’s testimony from the deposition transcript, before they ask a question.  It doesn’t work that way.  You ask the question at trial, and only if it differs from the testimony do you get to read the deposition transcript.  (Under certain circumstances, the testimony of a third party witness can be brought in through a deposition if that witness is not at trial.)

Objections, and why the deposition transcript is not an exhibit.

To this day, I still see attorneys trying to have a deposition transcript marked as an exhibit so it can be viewed by the jury, but deposition transcripts are never evidence. As you testify, your attorney will state objections for the record. For example, opposing counsel may ask a compound question, so your attorney will say, “objection, compound.” But that does not mean you don’t have to answer the question. If you could be prevented from answering a question with a simple objection, then your attorney could just object to every question.

Then why object? There is no judge sitting at the deposition to rule on objections, but there will be one at the trial. Your attorney makes objections to preserve the record. If at trial, the oppositions wants to read from the deposition transcript  he informs the court of the pages he wants to read, and the judge then rules on the objections. So, if the judge agrees that a particular question was improper, and there was an objection, the attorney will not be permitted to read that part of the transcript to the jury.

Do you see now why the deposition transcript cannot be sent into the jury room as an exhibit? If the transcript was given to the jury, then the jury would have all the questions and answers, without any ruling by the judge on whether the questions were proper. Also, the transcript will usually contain questions and answers that have no importance to deciding the case, and all of that superfluous information would only confuse the jury.

The deposition transcript is not an exhibit, and it does not go to the jury. If you understand that basic point, you are already much smarter than many attorneys.

The jury will never see or hear your great deposition testimony.

I sometimes get calls from potential clients who want me sue their trial attorney for malpractice. Among the list of thing their attorney did wrong will be, “He never showed my deposition to the judge or jury.” The potential client feels that they gave brilliant testimony at their deposition, and felt that would win the case. It doesn’t work that way.

If you ever find yourself in a position where your attorney is showing your deposition to the judge and/or jury, you are in serious trouble. I say it again. Your deposition transcript is used only to contradict your testimony at trial. If you gave brilliant testimony at your deposition, then how would it ever be used at trial? Your attorney will put you on the stand and ask the questions that need to be asked to prove your case, and opposing counsel will cross-examine you. The only time he will pull out your deposition transcript will be to show that you said something different at the deposition. If your attorney pulls out the transcript because you are saying something different at trial, he would be seeking to impeach his own witness, and that is not permitted.

This is why giving more information than you need at your deposition serves no purpose. You want to give the best, most accurate testimony possible at your deposition, but without volunteering any information that was not requested. You now see why. Some clients feel like they want to prove the case at the deposition, but every word you utter provides a greater opportunity for contradictory testimony at trial.

Now that you know the very basic concepts, I’ve provided some YouTube videos here that discuss depositions and how to provide testimony without getting tripped up.

This next video has some pretty low production values, but the New Jersey attorney passes along some good information.

I take exception with one point he makes.  I always tell clients that a deposition is not a test that you pass or fail.  "I don't recall" is a perfectly fine answer, unless it is something you should recall.  In other words, if opposing counsel asks when you first met his client and you can't recall the exact year, that's fine.  But if you are suing for breach of contract, and the attorney asks whether you signed the agreement, you are going to appear strange if you don't know the answer to that basic question.

Back to his point.  If the case is one with a lot of details, and it is important that you know them, then you might want to review the documents before a deposition.  But if the case is one with simple facts, say a personal injury action arising from a driver who ran a red light, then it may not be necessary to review any documents.

Why does it matter?  At the start of the deposition, many attorney will ask, "Did you review any documents in preparation for this deposition."  If you did, as the attorney on the video suggests, then your yes answer reveals a lot of information.  The attorney will ask you to identify every document you reviewed, and that could reveal where you think the problem lies.

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