How to Prepare for a Deposition as a Defendant
February 1, 2023
It can be unnerving to come up with the proper responses to the questions by the plaintiff’s attorney. It can require some preparation to face such a situation. According to civil procedure law, both parties can obtain information from the other party to support their claims and defenses before the trial. This is known as the discovery process, and deposition is a key component. Continue reading to learn how to prepare for a deposition as a defendant.
What is a Deposition?
A deposition is a part of the formal investigation conducted during the pre-trial phase. The attorneys are given the right to ask questions from the opposing party on any matter that is relevant to the case. The statement given by the witnesses, also known as the deponent under oath, is called a deposition. The deposition is often recorded in the form of a transcript.
The purpose of a deposition is to allow both parties to assess the facts of the case and develop their legal strategies. The deposition also helps minimize any unnecessary delays when the trial commences. Sometimes the deposition process can help both parties reach a settlement agreement without going to trial. The deposition process might not be part of all lawsuits. For instance, civil lawsuits that don’t need any witness testimonies may not need a deposition.
There are two primary purposes for conducting a deposition in a lawsuit; to gather the witness’s testimony, also known as the deposition testimony, and to preserve it. This process can take place at the attorneys’ offices instead of the courtroom with the opposing counsel and the deponent’s attorney present. Judges are typically not present during the deposition unless an immediate ruling is necessary in the case. A certified court reporter can also be present when a deposition is conducted. The entire process could be as short as 15 minutes or take several days to complete. Any false statements made by the deponent under oath can lead to civil and criminal penalties.
Tips for the Deposition
The opposing counsel can try different tactics to undermine your deposition, so you must be prepared to handle it. You may be asked tricky or misleading questions to get you to admit fault or respond in a manner that weakens your case. In addition, they can ask the same question in different ways to check if you stick to your answer. Your attorney can guide you on how to handle the deposition. Here are a few tips to get you started:
Leave Enough Time for Preparation
The first step is to give yourself enough time to prepare for the deposition. You can review the facts of your case with your attorney before the deposition is conducted. This can help you practice answering the expected questions. It can also help you learn the strong points of your case and highlight them during the deposition. Reviewing the facts of your case can help you make a good impression. The topics discussed during a deposition can go beyond the subject itself, so it is worth going over a few potential topics with your attorney.
Wear Professional Clothing
Even though depositions are not conducted in a courtroom, you still should wear proper business attire to look professional. Avoid wearing unnecessary accessories or jewelry that draw unwanted attention to yourself or make you look unprofessional.
Answer Every Question
Unless the opposing attorney is asking a question that is irrelevant to the case or violates privilege, you have to answer every question, even if it is with a simple “Yes,” “No,” or “I do not know.” The opposing counsel should be able to explain how each question would affect your case and why they are being asked. Even if the opposing attorney answers the question by rephrasing it, you should stick to your answer.
Think Before Answering
When the opposing counsel asks you a question, listen carefully to the entire question before answering. Wait until the opposing attorney completes their questions before responding. You should also try to keep your answer precise and answer only the question that is being asked. This prevents you from mistakenly giving away any unnecessary information that can be used against you by the opposing counsel. Taking a brief pause after the other party asks you a question also gives your attorney enough time to object to the question if it is irrelevant or damaging to your case.
Don’t Volunteer Information
A critical thing to remember is to refrain from volunteering any information whenever a question is asked. For instance, if the answer to a question is a basic yes, your answer should be nothing more than yes. As the defendant, you must be conscious about whatever you say at the deposition. Volunteering additional information can put you in a tight spot and expose vulnerabilities the opposing counsel can exploit.
Ask for Clarification If You Don’t Understand the Question
Only answer questions if you are entirely sure of what is being asked of you. It is better only to answer a question if you fully understand it. You can politely ask the counsel to rephrase or offer clarification. When you answer without understanding the question, it gives the impression that you fully understand the question but are not providing a truthful answer. Remember that the court reporter is typing out everything you say during a deposition so that it can be recorded as evidence against you.
Always Tell the Truth
Telling the truth during the deposition process is your legal obligation, even if you feel the truth can harm your case. The defense attorney can help you practice how to address questions that are potential weak points in your case. In addition, speaking the truth will help you stick to your answers and not change them. Although any mistakes should be corrected when the deposition is being recorded by the court reporter, you have the right to review the deposition transcript to address any errors.
Avoid Getting Emotional
Do not get rattled or upset easily when the questions get tough. Instead, try to remain professional and keep your answers brief. It would help if you practice answering the questions with your attorney; they can guide you on what tone to maintain during the deposition. If you ever feel emotionally overwhelmed, take a breath, sip on some water, and then continue with the answer session.
No Need to Guess
“I do not know” can be more of a proper response than guessing the answer to a tricky question. Avoid making any assumptions or claiming to have personal knowledge of something that you don’t. The opposing counsel may ask questions from a document, such as police reports or medical records. Even if you know the answer, do not testify about the contents of an unfamiliar document. Instead, insist on reviewing the document before answering a question.
Also, avoid bringing any document to the deposition you want to refer to or review. If you do that, the opposing counsel can request to review those documents and question you about the document’s content. It opens a new avenue for the attorney to explore, potentially finding faults in your personal injury case or other type of lawsuit.
Be Silent During Question Breaks
After you have answered a question, remain silent until the opposing counsel asks you another question. You might feel anxious due to the long pauses during the questions and feel compelled to say something else. Sometimes opposing counsels use the silence between questions as a tactic to keep you talking and obtain more information from you to support their claim. Always remain silent in between questions. If the defense attorney objects to any questions on your behalf, wait until they are finished because the other party could be seeking privileged information from you.
What Should You Not Say During a Deposition?
- Avoid Profanity: If you make a good impression on the opposing attorney, you can do the same in front of the judge and jury during trial. The first step is to get into the habit of not using profanity in your statements. Not only would using profanity offend other participants, but it can also negatively impact your case. If you fail to act professionally during your deposition testimony, it could hint at the stress you are under, which can be used by the opposing party to claim you are at fault for the case.
- Avoid Mentioning Conversations: You should avoid mentioning any conversation or prior statements of the past. If you find yourself in a situation where you have to discuss a former conversation with another individual, ensure that you bring it to the attention of the opposing counsel that you are not quoting the conversation word-for-word but rather paraphrasing it. Defense attorneys can guide you on what conversations can be mentioned in the deposition or used as admissible evidence.
- Be Careful with Humor: Answer sessions can be unnerving, and you could try to make light of the situation to deal with the stress, but doing so can negatively impact your case. So be careful with humor, as it can show a nonserious attitude towards the case.
- Avoid the Use of Absolute Phrases: One mistake you should not make during a deposition is giving an answer that includes words such as “never” and “always” to any questions of the opposing attorney. If what you are saying is not entirely true, using absolute phrases in your sentences can put you in a tough position. For example, if you claim to have never run a stop sign and the opposing counsel proves that you did, it can harm your civil lawsuit.
How to Stay Calm During a Deposition?
You may think of the deposition as nothing more than a discussion and speak the truth about what you know and what you don’t. If you make assumptions and say something you do not clearly remember, you could put yourself under unnecessary stress. Remember that you can also be subject to criminal sanctions if you lie during your deposition because whatever you say would be under oath.
Another tip is to calmly consider a question and take your time to answer. Refresh your memory so you can be truthful in your answers. Another tip is to speak slowly, keep your answers brief, and only offer clarification if you are asked to do so.