You are having your deposition taken. This is a new experience for you, or at least not something that happens often. You are a little bit nervous. You ask yourself, “what happens at a deposition? Is there anything I should do to prepare?” This post will provide some guidance.

First you should understand what a deposition is and what it is not. A deposition is merely an opportunity for the parties, through their lawyers, to ask you questions about the case before trial.  The deposition is typically held in one of the attorney’s conference rooms. The judge and jury are not present. The attorneys for the plaintiff and defendant will be present along with a court reporter.  You can bring an attorney to represent you.

The court reporter will be recording your testimony. You will be put under oath, under penalty of perjury. Your testimony may be video-taped.

The reason you are being asked questions is because the parties want to discover the facts before trial. They want to “freeze” your testimony.  They also want to assess your credibility and evaluate whether you will make a “good witness” at trial.

It is very likely that the questions you will be asked will be centered around a) liability (who was at fault) and/or b) damages (how much will the “at fault” party pay to the injured party).

Your attorney (if you are represented) will meet with you before your deposition.  During this meeting you will likely go over your prior statements, the answers you have provided during the discovery phase of the case (if any) and, if you are a party to the case, some of the key issues. Listen closely to your attorney. Everything you say at your deposition can and will be used against you.

Below are some of the rules that I feel are important to consider when you are having your deposition taken.

• Tell the Truth:  This is the most important rule. If you change your story at trial the prior inconsistent statement(s) in your deposition transcript will be highlighted. Also, if you lie under oath you may be guilty of perjury.
• Don’t Volunteer Information – Most people, even lawyers when they are deposed, offer too much information. If you are asked what year you became a physical therapist do not say “let’s see, it was the year after the Giants played the A’s in the Bay Bridge World series, which was in ’89, so I guess it was 1990.”  Say “1990.” And then stop talking.
• Answer Only the Question being Asked: This is another way of saying don’t “volunteer information,” – it is important enough to repeat. This point cannot be overemphasized. Follow this rule and your deposition will end much sooner.
• Do not Respond until the Question is Complete: This requires listening and not interrupting. Rememberthis is not an everyday conversation where you want to keep the conversation going.
• Before Answering Perform the Following Exercise:
  1. Pause: Repeat the question in your mind  Before answering ask yourself:
  2. Do I understand the question being asked? If you do not understand the question, tell the lawyer that you do not understand and ask him to repeat the question.  You may have to ask him/her to repeat the question multiple times until it is phrased in a way that you do understand.  Do not answer until you understand the question.
  3. Can I Answer with a “Yes” or “No” or “I don’t know” or “I don’t recall” or a short phrase or answer? The answer should be “yes.” If you cannot truthfully and logically answer the question in this manner the question be rephrased. As the lawyer to repeat the question until it can be answered in this manner.
• Do not Guess:  Guessing is bad. You should only testify as to your first-hand knowledge. Rather than guess, you should say “I do not recall” or “I do not know.” Remembering later does not mean that you “lied” during your deposition – you can always explain how your memory was jogged.
• Do not Volunteer Your Opinion: In the legal world “experts” are paid for their opinions. If asked you may offer your opinion; however, be sure to make it clear that you are offering your opinion only because you have been asked and that your opinion is not necessarily correct.
• Listen to your Attorney: Stop talking if your attorney objects. If your attorney objects do not answer the question until he/she tells you to answer.

Listed below are some common traps to be aware of:

1. Compound questions. This is two questions in one; “Did you see the accident and was the floor wet?” In such a case you would ask the attorney to ask one question at a time.
2. Characterizations of your testimony. “So, is it fair to say that the hospital staff should have been watching Ms. Jones to make sure that she did not fall?”  If you do not agree, simply say something like “I did not say that.”
3. Narrative questions. “Tell me everything that you do when there is an accident in the nursing facility.” You can and should ask for clarifications like “what do you mean by everything?” However, at some point a short narrative may be unavoidable.  Always end by saying “this is all I can remember at this moment.” This preserves your ability to remember later after looking at records etc.
4. The “Absolute” trap.  Beware of questions that start with “Do you always” or “Have you never” or other phrases that try to pin you into an absolute. There is nothing wrong with answering in the absolute if you are sure.  Otherwise it is better to answer in something less than absolute terms by saying “as far as I recall at this time, yes” or something that takes you out of the absolute.

Finally, listed below are some miscellaneous tips which may make your experience less stressful.

• Request Breaks: You can and should take a break every 30 to 45 minutes. Do not allow yourself to get tired or confused. You can talk to your attorney, privately, at any time.
• Attire and Promptness: Dress professionally and be on time.
• Keep your Emotions Under Control:  Your deposition is part of a clearly defined dispute resolution process. You may feel attacked. Sometimes lawyers may intentionally “test” you to see if you can remain calm in front of a jury. Keeping your cool and acting professionally almost always works to your advantage.

If you keep the above in mind you should have a “leg up” in preparing for your deposition.