A deposition is pre-trial testimony used in the discovery phase of litigation. At this stage, the attorneys are gathering information and facts as they prepare their cases for trial. It is similar to giving testimony in court because it is given under oath, and an attorney or attorneys will ask you questions. The questions and your responses will be recorded either by video camera or a court reporter. However, no judge or jury will be present. Depositions typically take place in the conference room of an attorney’s office.
You may be called for deposition testimony because you or your employer is a party in a lawsuit. If so, your attorney will advise you about the deposition process, and your attorney will sit beside you as counsel as the opposing party asks you questions. Your attorney may make objections to the questions opposing counsel asks. It is important to discuss any issues or concerns about your upcoming deposition with your attorney before your deposition begins.
You may also be called for deposition testimony even if you are not a party in a lawsuit. As a non-party, a requesting party may serve you with a subpoena commanding you to appear at a certain place and time for your deposition to be taken. The subpoena will also list the topics the requesting party intends to cover. Consider hiring an attorney to defend you in the deposition process, particularly if you have a high level of involvement in the matter being litigated. But even if you do not, an attorney can help navigate you through the process, protect you from unreasonable or aggressive behavior by the questioning attorney, and advise you on potential liability exposure as a result of the deposition testimony (in some instances, the parties in the lawsuit may be able to join you as a party).
If you are a non-party and it is not possible for you to appear at the time and place listed on the subpoena, do not hesitate to call the requesting attorney (or have your lawyer call if you’ve retained one) to ask to reschedule for a time that does work for you. However, understand that not appearing at the scheduled date and time could potentially mean you will be found in contempt of court.
The following are 10 tips to keep in mind for any deposition:
1. Tell the truth. Always. Just as in a court of law, you are under oath. If you do not tell the truth, you could be convicted of perjury, a felony in Ohio.
2. Be polite! Having your deposition taken can be annoying or inconvenient at best. You may not like the questioning attorney or her client. However, it will not help you to lose your temper. Do not argue.
3. Be clear with your words. Gestures, such as nodding your head or shrugging your shoulders do not translate into the written transcript, neither does responding “uh-huh” to answer a question affirmatively. Strive to clearly respond with a verbal “yes” or “no.”
4. Listen to the question. If you do not understand the question, ask for clarification. Do not answer if you do not understand the question. Allow the questioning attorney to finish her question fully before responding, even if you think you know the answer before she finishes.
5. Do not guess or speculate. If you do not know the answer to a question, it is perfectly acceptable to say “I don’t know.” You are not expected to know every detail. Additionally, do not base your answer on your predictions, feelings or musings.
6. Do not volunteer information. You are not under an obligation to justify your answers or tell “your side” of the story. Answer the question, but stop talking after you have answered. If the questioning attorney needs more information, she will ask. Similarly, do not volunteer to provide any documents. If a questioning attorney needs documents from you, she may request documents via other channels.
7. Be careful about making estimations. If you are estimating anything: distance, time, amounts – be clear in the record that you are making an estimate. Example: “I’m not sure of exactly how long ago the accident occurred, but by my estimation, it was in early May of 2010.”
8. If you made a mistake, say so. If at any point during the deposition you realize that you made a mistake in answering an earlier question, correct yourself at the earliest opportunity.
9. Do not disclose discussions you’ve had with your attorney. If a question requires you to divulge conversations you’ve had with your attorney, your attorney will make the appropriate objection. The questioning attorney is not entitled to know the contents of your conversations with your counsel.
10. Leave the jokes and foul language at home. Understand that jokes, especially sarcasm, may not translate well in the written transcript. Jokes or obscenities will not add any clarification or value.
Remember, your attorney is the best person to advise you about the deposition process and how it may impact your legal rights.