- I. General Information
- A. Definitions and background information
- B. Logistics
- II. The Deposition Itself
- A. The deposition begins
- B. Types of questions
- C. Specific questions to expect
- D. Responses
- E. Objections
- F. Exhibits and documents
I. GENERAL INFORMATION
A. Definitions and Background Information
Q: What is a deposition?
A: A deposition is one of a number of procedural "discovery"
methods used by an opposing attorney to "discover" information
about your case. It is part of the other side's investigation of
the case. The opposing attorney will ask you a series of
questions. You will take an oath to tell the truth in answering
all questions.
Q: What is a deponent?
A: A deponent is a person who gives information to the lawyer
in a conference-type setting. This whole process in which the
lawyer questions the deponent and the deponent gives information
is called a deposition. The "deponent" is the same as the
"witness."
Q: Why is my deposition being taken?
A: So that the opposing lawyer can determine what you know
about the facts and details of the case. A deposition enables a
lawyer to form an impression and to make an appraisal about you,
about what you know, and about how you say it.
Q: What rules govern the deposition?
A: The rules that regulate what happens during a lawsuit. These
rules allow the lawyers to obtain information through discovery
before the trial to better prepare for the trial. These rules also
increase the chances of settling the case so that you may not have
to testify again at trial.
Q: How is this information going to be used?
A: The information tells the other side what you know. Your
deposition gives the other lawyer an opportunity to determine how
good a witness you are going to be. The information also helps
settle cases because both sides know the various versions of what
happened and they can more easily agree on a settlement before
trial.
Q: What if this case goes to trial? How is the deposition
transcript used in court?
A: Statements that you make during a deposition may be evidence
for court. If you admit or deny certain things or give certain
information, this information may be used as evidence in court. It
may also be used as "impeachment" evidence; that is, evidence that
will be used to show that you have said something inconsistent. If
your testimony differs at trial from your testimony during the
deposition, the other attorney may be able to read from, or have
you read from, the deposition transcript, and point out the
inconsistency to the judge and jury. The deposition transcript
could also be used instead of your live testimony, should you be
unavailable at the time of the trial.
B. Logistics
Q: Do I have to attend the deposition?
A: Yes. Your lawyer has been served with a written notice of
your deposition and you must attend. It may be possible for the
time and date of your deposition to be changed, and you should
discuss this with your attorney if you have any questions.
Q: How long does a deposition take?
A: That depends on the particular case and the lawyer asking
the questions. Your lawyer may be able to estimate the time for
your deposition. Your schedule should be arranged so that you will
not be hurried or rushed for time when you testify.
Q: Will there be any breaks during the deposition?
A: Yes. There will be breaks periodically throughout the
deposition, depending on its length. You should be as comfortable
as possible at all times. Tell your lawyer about any physical
conditions or problems that you have which require special
attention. Your lawyer will arrange for any breaks you need during
the deposition.
Q: Will I be allowed to drink coffee or water or smoke during
the deposition?
A: You will usually be allowed to drink water or coffee or some
other refreshment. You may or may not be allowed to smoke. No
eating is permitted. If you need a break, let your lawyer
know.
Q: Will I get reimbursed for lost wages or transportation
expenses?
A: No. You will have to bear those costs as part of your
involvement in this lawsuit.
Q: What should I wear to the deposition?
A: You should present your best appearance. Dress as if you
were going to appear in court and wear neat, moderate, and
comfortable clothing. Your attorney may want you to dress
differently; he or she will so advise you.
Q: Will the deposition take place in a courtroom?
A: No. It takes place in an informal setting, frequently in the
examining attorney's office, often in the court reporter's office,
occasionally in the courthouse, sometimes in the opposing
attorney's office, and at times in the deponent's office so that
certain documents will be accessible. Your lawyer will advise you
as to the exact location of the deposition.
Q: Will there be a "deposition room"?
A: The room will usually be a conference room or library
office. There will be a table and several chairs around the table.
You will sit in one of the chairs next to your lawyer, and the
other people will sit on the other chairs.
Q: Who will be present during my deposition?
A: Your lawyer will be there with you. The lawyer or lawyers
representing the party or parties in the case will also be there,
as will a court reporter-stenographer, who will record what
happens.
Q: Will there be anyone else present during my deposition?
A: Ordinarily not. If there will be, your attorney will advise
you. Sometimes parties to an action will exercise their right to
sit in during depositions.
Q: Can I bring anyone with me to the deposition?
A: Ask your lawyer in advance and he or she will tell you who
may or may not sit in with you at the deposition.
Q: Can I object to the presence of someone at the
deposition?
A: Probably not. The parties can be there, as can their
lawyers. If you expect that someone you do not want to attend will
be there, contact your lawyer.
Q: Is the deposition conducted like a trial?
A: Not exactly. There will be no judge or jury present, but
otherwise you will be answering questions in somewhat the same
manner as you would during a trial. Although a deposition seems
less formal than a court hearing, it is important to remember that
the deposition testimony can be used in court. So don't let the
informal setting make you less careful in answering the
questions.
Q: Will my answers be recorded?
A: Yes. Everything said during the formal part of the
deposition will be recorded. A court reporter-stenographer will
record everything you and everyone else says on a "stenographic
machine" or by shorthand or by tape recorder. There may be times
when somebody says, "Let's go off the record," and if you see the
reporter take his or her hands up off the machine, then that means
no real record is being made. This testimony may later be
"transcribed" (typed up in a booklet form) by the
reporter-stenographer, with copies made available to the court and
to the attorneys. Also, the lawyers will be taking notes.
Q: Will my deposition be videotaped? A: Some courts encourage
the use of tape recorders or videotape equipment. If your
deposition will be videotaped, your attorney will discuss this
aspect with you.
II. THE DEPOSITION ITSELF
A. The Deposition Begins
Q: How does the deposition begin?
A: The reporter-stenographer will ask you to raise your right
hand and take an oath to tell the truth. After the oath has been
administered or after you have affirmed to tell the truth, the
other attorney will ask you questions or may explain some
deposition procedures and then begin the questioning.
Q: How should I conduct myself during the deposition?
A: Remain polite and calm at all times. Do not become angry or
upset. Be courteous, but do not become overly friendly with, or
tell jokes to, the opposing lawyer or the reporter-stenographer.
Do not talk at the same time someone else is talking. The reporter
will not be able to transcribe two people talking at the same
time.
Q: What if I am nervous?
A: You probably will be a little nervous. That's normal, but
control it so that you will testify accurately and clearly. The
information you give is important, but of almost equal importance
is the impression you make on opposing counsel.
Q: Whom should I look at when I give my answers?
A: The other attorney will be asking you the questions, and you
should ordinarily look and talk to that attorney. You want to make
certain that you speak clearly and loudly enough so that the
reporter-stenographer can accurately record what to say. Do not
nod your head or use facial expressions or gestures to answer
questions. Be certain that you verbalize whatever you do so the
reporter-stenographer can record that.
Q: What should I do if I do not understand something that has
happened during the deposition?
A: Ask your attorney to explain to you what happened.
Q: May I ask my attorney questions in private during the
deposition?
A: Yes. If at some point you're confused, ask to speak to your
lawyer. But you should avoid overdoing this. It may look like you
and your attorney are planning or changing your answers.
Q: Is it permissible for me to talk to my lawyer during a break
in the deposition or when there is a lull in the questioning?
A: If you have some questions or concerns about the deposition,
you should discuss them with your lawyer. But be careful not to
talk too loudly, or other people will overhear you.
Q: Will I be told anything about the lawyer who will ask me the
questions?
A: Yes. Your lawyer will discuss with you the type of
questioning usually conducted by an opposing attorney. Your
attorney may even tell you something about the attorney's
personality, approach, pace, and other factors.
Q: Should I answer differently if the other attorney is
friendly or hostile towards me?
A: No. Don't be disarmed by friendliness or intimidated by
hostility. Tell the truth, regardless of the disposition of the
attorney. Whether he or she is friendly or hostile, the attorney
has only one goal, and that is his or her client's best interests,
not yours.
B. Types of Questions
Q: What kind of questions will the other attorney ask me?
A: The other attorney will generally ask you questions about
what you know and what happened. He may also ask you questions
about your personal history and background.
Q: Must I answer every question the opposing lawyer asks?
A: Yes, unless your lawyer objects, or unless you do not know
the answer or do not remember the details. Do not make up answers.
Q: What if I consider questions about my personal history and
background to be confidential and private?
A: The law usually allows the other attorney to ask you
questions about your personal history and background because such
information often has a direct or indirect significance to the
case or is of importance or interest to the other attorney. If
such information is protected by the law, then your attorney will
object and advise you not to answer. If your attorney does not
object, then you should answer the questions. Your lawyer will
protect you.
Q: Do I have to answer hypothetical or "possibility" questions
the other attorney asks me?
A: The other attorney may ask you "if' questions, or "assume"
questions: "What if this happened?" or "Assume that happened?" You
do not have to answer such hypothetical or possibility questions
and you should not guess at answers. Simply tell the attorney you
can't answer and do not want to guess.
Q: What if the other lawyer does not ask me certain questions
which I think are important?
A: Do not volunteer facts or answers to questions you have not
been asked. The opposing lawyer will ask you questions that he or
she wants the answers to. For example:
Q: Where do you live?
A: I live at 1934 Suburban Avenue. My spouse and I live there
and we have three children. I work at 3M. My spouse works at
Mounds Park Hospital. Since you were only asked where you live,
you should simply give the address and not the other information.
If the other attorney wants the other information, he or she will
ask for it. If you continue giving details that you have not been
asked about, the deposition will become unduly long and
disorganized.
Q: What if the other attorney asks me a question that will hurt
my case if I answer it?
A: You must tell the truth, regardless of whether your answer
will hurt or help your case.
Q: Will the other lawyer ask questions, in order, or skip
around from subject to subject?
A: Different lawyers ask questions differently. Some follow a
pattern, others skip from subject to subject. If you pay close
attention, you should be able to answer the questions easily.
Remember that you have the right to have a question repeated or
clarified if you did not understand or did not hear it. If you
tell the truth and stick to the facts as you know them, no amount
of skipping around should confuse you.
Q: Will the other attorney ask me any trick questions?
A: You have watched Perry Mason too often. If an opposing
lawyer tries to trick you, your attorney will be aware of the
situation and will take steps necessary to protect you. Do remain
alert, though; otherwise you could become confused.
Q: Will more than one lawyer be asking me questions? A: That
depends on how many parties there are in the case. If each of the
parties is represented by a different lawyer, each may ask you
some questions.
Q: Will my attorney ask me questions during the deposition?
A: Your attorney may or may not ask you questions after the
other attorney has finished asking you questions. Your attorney
may ask you questions to clarify some of your answers or to have
you give some additional information. This is why you need not
volunteer testimony, because your attorney may add information by
questioning you later.
C Specific Questions to Expect
Q: If I am asked, "Did you talk to your lawyer before coming to
this deposition?" what should I say?
A: The truth: Yes. There is absolutely no reason for you to
hide the fact that you talked to your lawyer before coming to the
deposition.
Q: What if the other lawyer asks, "Did your lawyer tell you
what to say at this deposition?"
A: Your lawyer will not tell you what to say. Your lawyer will
tell you to testify truthfully and to the best of your ability and
knowledge. Your lawyer will prepare you for your deposition by
referring to reports, notes, and other documents in the file and
will review facts in order to refresh your recollection.
Q: What if the other attorney asks, "Do you realize you are
testifying under oath?" or "Is that really your sworn testimony?"
A: Some attorneys, by asking such questions, may try to
intimidate you or try to insinuate that you are lying. These are
usually scare tactics. If you have answered your question
honestly, according to the best of your ability, while these
tactics may bother you, they should not concern you. Your attorney
will protect you if these questions and tactics get out of hand.
Q: Will I be asked if anyone ever sued me or if I was ever a
party in a lawsuit? A: Probably. Answer the questions truthfully.
D. Responses
Q: How should I answer the questions the other attorney asks?
A: Listen to the question. Be sure you understand it before you
respond. Take a moment to think about it and make sure that you
understand it. Proceed at your own pace. Answer the question
asked; don't ramble and don't volunteer any information. Be brief
and concise. You are only obligated to answer the question
directly. Give only information as to what you saw or heard. Don't
speculate as to what other people were doing or what they were
thinking. Do not ask questions in answer to questions.
Q: Should I be animated or speak in a monotone?
A: Speak as you normally do. Speak clearly, slowly, distinctly,
and audibly. Remember also that the court reporter will be taking
down everything that is said during the deposition. The court
reporter can only take down verbal responses; he or she cannot
take down a nod of the head or a gesture.
Q: What should I do if I did not hear a question?
A: Simply say that you did not hear the question asked. The
opposing lawyer will then either repeat the question or ask the
reporter-stenographer to read the question to you.
Q: What happens if I do not understand the question the other
attorney asks me?
A: Speak right up and tell the attorney that you do not
understand the question and that you cannot answer it. Before you
answer a question, make certain you understand it. You should not
and do not have to answer any question you do not understand.
Also, if the opposing attorney uses a word that you don't know,
don't hesitate to say so. It's important that you not act as if
you understood the word and not try to bluff your way through.
Q: Would it be a good idea for me to memorize much of my
testimony so I won't forget what to say?
A: Do not memorize your testimony. A deposition is not a memory
contest. Your lawyer will prepare you and suggest ways to help you
remember answers during the deposition.
Q: Should I conceal any information?
A: No. The lawyer questioning you has a right to certain
information. Answer each question as truthfully and honestly as
you can. Give a full and complete answer; do not withhold any
information. However, do not volunteer additional information.
Q: Can I explain my answers?
A: The attorney will ask you some questions that will require a
yes, no, or I-don't-know response. You should answer such
questions accordingly. If you cannot answer a question with a
simple yes, no, or "I don't know," then explain your answer. The
other attorney may nonetheless insist that you answer with a yes,
no, or "I don't know." If so, tell the other attorney that you
cannot answer the question that way, but only in your own way.
Your attorney will protect you if you have difficulty in answering
the question.
Q: What if the opposing lawyer interrupts my answer to a
question before I'm done?
A: Your attorney will recognize that you have not been
permitted to complete your answer. It is possible that your lawyer
may not be interested in having you complete your answer. He or
she may then do nothing. Your lawyer may ask you if you care to
complete your answer or may decide that your interrupted answer is
all that opposing counsel is entitled to receive under the
circumstances. If your completed answer is vital to your case,
your lawyer will make it possible for you to complete your answer.
Listen carefully to your lawyer and be guided by his or her
instructions to you and by his or her remarks to the stenographer
or the opposing lawyer.
Q: What if I do not remember for certain or I am not sure about
an answer?
A: There is nothing wrong with an answer that says, "I don't
know" or "I don't remember." You will not be expected to remember
everything. You should explain what you remember. If you do not
remember something for certain or something completely, then you
should say so. If you can give a reasonable approximation of
something, then you may do so. For example, if you are asked
questions about what someone said, and you do not remember exactly
what was said, you should respond: "I don't remember the exact
words, but he said something to the effect that. . . . " If you
are asked about time, speed, or distance, and you are not certain
but can make a reasonable estimate, then you may respond: "About
one hour," or "Around 30 miles per hour," or "I am not sure, but I
would estimate. . . . " If you cannot make a reasonable
approximation or a reliable estimate, or you do not recall the
particular facts, say so. Use your best judgment. Do not guess or
speculate about something. Give only information you have. If the
other attorney insists on an answer or on your best judgment, and
you can only guess or speculate, tell the attorney that you cannot
answer the question.
Q: Should I give my opinion about something?
A: If the other attorney asks you for your opinion, then give
it. If you are not asked for it, then do not volunteer your
opinion unless you need to in order to explain an answer fully.
Q: What if the other attorney is dissatisfied with my answer?
A: You are there to tell the truth, not to adapt your answers
to satisfy the other attorney. Most often, because the other
attorney will be representing the other side, your information
will not be favorable to that attorney's position. You should not
be concerned whether you satisfy or dissatisfy the other attorney.
Q: What if I realize during the deposition that I have given an
incorrect or inaccurate or incomplete answer to a previous
question?
A: You may ask that that particular question and answer be
asked or read again. Then you should think carefully about any
change you wish to make in your testimony. The other lawyer may
ask questions about the change in your testimony in an attempt to
discredit your corrected answer. But it is usually more important
for you to correct an answer than it is for you to leave an
incorrect answer on the transcript. If you have a doubt about what
to do, then you should speak to your attorney about the matter.
Q: What if I feel during the deposition that things are not
going well or that the other attorney is taking advantage of me,
what should I do?
A: Your attorney is there to protect you, and while you may not
think things are going well, your attorney may be satisfied with
what is happening. If you feel strongly that something is wrong,
then speak to your attorney.
E. Objections
Q: What is an objection?
A: If the other attorney asks you a question and your lawyer
considers that question improper, your lawyer will say
"Objection," or words to that effect. That word is a signal to you
not to answer the question. Do not volunteer to give an answer
when your lawyer makes an objection. Your lawyer will make the
objection because the question or the expected answer may be
improper or confusing or ambiguous. An objection is not a signal
for you to explain something. You should remain silent until your
attorney no longer objects or gives you permission to answer that
question.
Q: Why do attorneys object?
A: The attorney may object because he or she thinks the
question is something that really shouldn't be answered. The
objection is the only way your attorney can speak to you as well
as speak to the other attorney to disagree with the nature and
type of question. Sometimes an attorney may object just for the
record, so that later on, when the transcript is read, the
objection acts as a reminder of a possible error.
Q: Will there be many objections during the deposition?
A: Usually not. The other lawyer can ask you many questions
that will be proper for the deposition. These same questions may
not be proper for the trial. If those questions were later asked
at the trial, your attorney might object. But during a deposition,
your attorney probably will not object to such questions because
the law allows the other attorney to ask them during the
deposition.
Q: Why should I answer if my attorney objects?
A: Your lawyer may object, state his reasons, and then tell you
to answer the question. The rules may require this. Do listen very
carefully to the objection because it may give you a clue. It may
let you know that you're being led into something. Or an objection
that the question calls for "speculation" would be a tip to ask
yourself, "Am I speculating or do I really know that?"
Q: What if I think a question should not be answered but my
lawyer does not make an objection?
A: Answer the question. Your lawyer is there to protect your
interests, and he or she knows when to make objections. You may
not understand why the other side has asked the question, but you
should answer the question unless your attorney objects. If you
believe there is no reason at all to answer a question and your
attorney does not object, then you might consider conferring with
your attorney.
Q: Are there other kinds of objections my lawyer may make?
A: Yes, your lawyer may instruct you not to answer a particular
question. Refuse to answer it. If the other attorney asks you
whether you will or will not answer the question, tell him or her
that on the advice of your attorney you will not answer the
question.
F. Exhibits and Documents
Q: Will I have to examine any papers?
A: Maybe. It depends on your case. When an exhibit is handed to
you, don't start to answer the question until you have taken time
to become familiar with it (i.e., read it, examine it, study it).
Take your time.
Q: Will the other attorney ask me to identify certain documents
or photographs or objects during the deposition?
A: Perhaps. Before answering questions about a document, make
certain that you read the entire segment you are asked about. Even
though some documents may contain information or appear to have
been signed, read, dated, mailed, or handled by you, do not admit
such facts unless you have actual knowledge. If you cannot
identify all or part of a document, tell the attorney that.
Q: May I look at documents or papers before I answer a
question?
A: If the other attorney asks you a question about a document
or a thing, then you should first ask to see that document or
thing before you answer. If you do not know an answer, but do know
that a document or thing contains the answer, then you can tell
the other attorney that. Your attorney may prepare some notes with
you to refresh your memory during the deposition. If you need to,
you can ask your attorney for these notes.
Q: Should I bring any documents with me?
A: Your attorney will advise you whether or not you need to
bring with you any documents or objects or things or papers or
materials. You can suggest to your attorney certain documents or
materials that may help you in preparation for the deposition or
during the deposition. But do not bring anything with you or use
any materials without first obtaining your attorney's permission.
Q: May I bring documents with me?
A: No. Do not bring anything to the deposition with you unless
told to do so by your attorney. If you bring anything into the
deposition room, the opposing counsel may want to look at it.
Q: Can I get the documents back?
A: Yes. Speak to your lawyer about this.
Q: What should I do if the other attorney asks me if I will
provide copies of certain documents or look up some facts? A: Do
not agree. Turn to your attorney for advice.
Q: Will the other attorney ask me to make a drawing or diagram
during the deposition?
A: Perhaps. You should prepare for this by making some rough
sketches for the deposition. You will not be expected to prepare
an artist's drawing or draw something to scale. When you discuss
preparation with your lawyer, you may do a rough sketch at that
time.