How to Prepare for a Deposition
A deposition is an integral part of the discovery process of a legal proceeding. It constitutes a witness’s testimony taken under oath to gather evidence for a court case.
The deposition process can be quite unnerving for the person answering questions, known as the deponent. Deponents are often placed in a tight spot by misleading and tricky questions from the opposing attorney. And failure to provide proper response to these questions can negatively affect the outcome of the case.
However, your level of preparation beforehand determines the success of your deposition and consequently, the trial. In this article, you will learn how to prepare for a deposition with key practices to ensure a successful trial.
Understanding the Basics of a Deposition
A deposition is a legal process where both parties in a civil lawsuit obtain testimony from a deponent under oath before trial. The process is governed by the Federal Rules of Civil Procedure. Parties involved in a deposition include a deponent which may be the plaintiff, defendant, or witness, attorneys asking questions, a certified court reporter, and sometimes a videographer.
The court reporter records all questions and answers in a deposition transcript. The purpose of this legal action is to preserve the deposition testimony immediately after the answer session. Both parties may use the testimony to map out effective legal strategies for winning the case in court. Failure to record the testimony might result in the witness’s inability to recall accurate information since the trial may be months later.
Depositions are often held in a lawyer’s office and are limited to seven hours a day unless stated otherwise or ordered by the court. Deponents must provide only the truth as a false sworn testimony may attract severe civil and criminal penalties.
An invitation to a deposition is a legal order via a subpoena. It’s important to note that rejecting a subpoena may be considered contempt of court unless under certain proven legal conditions such as insufficient service of process.
Before the Deposition – Preparation Steps
- Hire a Competent Attorney
The expertise and experience of your attorney often influence the outcome of your case. Experienced attorneys understand how a deposition works and the challenges you’re likely to face in the context of your case. Hence, they’re in a good position to provide relevant deposition tips and suitable answers to leading questions you might face from the opposing attorney.
Finding a competent attorney doesn’t have to be a hassle. At On Call Legal, our team of experienced legal professionals are always available to provide you with expert attorney and deposition services.
- Review Relevant Documents
With your attorney, review documents relevant to the deposition to know the details of the case so that your deposition testimony will be truthful, accurate, and consistent with the facts. Some of these key documents include incident or accident reports, your medical records, opposing witness statements, photos or videos, your written or recorded statements, etc.
- Practice with Mock Depositions
The opposing attorney usually observes the deponent through close observations to check if they’re truthful, respectful, emotional, likable, intelligent, etc. So, be sure to practice with mock depositions.
A mock deposition helps prepare you for what to expect during the actual deposition. Your attorney should attempt to address possible questions that may challenge your personal knowledge. It helps reduce anxiety, build confidence, improve communication, identify possible strong points, and address potential errors that may arise during the deposition in court.
- Understand the Deposition Rules
Your attorney should walk you through the deposition rules. One important rule you must pay attention to is that you must tell the truth; you can be charged with crimes of perjury if found guilty of false witnessing. If you can’t recall a particular answer to a question or you’re not fully certain of your answer, it’s safer to indicate to the court.
- Know Your Rights
It’s important to be aware of your rights, like refusing to answer questions you don’t clearly understand. If a question is vague or confusing, ask for clarification instead.
Do not answer questions that require you to reveal private, irrelevant, or privileged information. Instead, insist on the opposing attorney to explain how your answer is relevant to the case. Also, you have the right to take breaks at any time, except when there is a pending question waiting for your answer.
Day of the Deposition – Best Practices
On the day of the deposition, both parties are required to be present. The opposing counsel asks pertinent questions to gather information they consider relevant to the case in question. Some of these questions may put you off balance and potentially cause you to react wrongly. Hence, you need to remain calm and maintain the right emotion throughout the process.
Some crucial best practices to help ensure a successful and compliant deposition include:
- Dress Professionally
Good impression matters in a deposition. Hence, dress professionally and conservatively, as you would in front of a jury. A well-groomed dress establishes credibility with the court reporter and the opposing party.
A nice blouse, slack, or skirt for ladies, or a shirt and tie for men, should suffice. Similarly, maintain clean, trimmed, or shaved beards for men; neatly wash and comb hair for ladies and men; and cover any tattoos.
- Arrive Early
Arriving early at the deposition location gives you enough time to calm your nerves, get settled, and become accustomed to the environment. You can also get water, identify the restroom for convenience, and review last-minute items with your attorney. It’s recommended you arrive the court at least 15 minutes before the deposition.
- Stay Calm and Composed
The opposing counsel usually asks tricky questions that can take you off guard and possibly trigger emotional reactions or responses. Hence, do your best to leave every reaction to your attorney while you stay calm and composed. Take breaks when necessary to relax and strategize with your attorney.
- Listen Carefully
When the opposing counsel asks a question, ensure that you listen, understand, think about the answer, and present the answer clearly and concisely. Do not make assumptions or provide wrong answers that can discredit your testimony. Rather, if don’t understand or miss any questions, ask the opposing counsel to repeat the entire question, and give answers to only the question you’re asked per time.
- Don’t Volunteer Information
Volunteering information as a deponent may reveal unnecessary information or open a window for further probing by the defense attorney. Endeavor to always give a direct and precise answer to each question. For closed-ended questions, a simple “yes” or “no” answer may be enough.
After answering one question, it’s best to remain silent until the opposing attorney asks the next question. In most depositions, deponents get nervous during a long silence and may be tempted to continue talking. Defense attorneys use this strategy to get additional information that can expose a deponent’s vulnerabilities.
- Ask for Clarifications
Remember that the court reporter records every statement you make whether true or false. Providing an answer to a question you don’t understand can lead to false testimony, which can negatively affect the presentation of the truth. Hence, it’s essential to ask for clarifications if you feel you don’t fully understand any question.
- Avoid Absolute Statements
Absolute phrases like “always” and “never” may have extra legal connotations that may implicate you. Avoid these phrases as much as you can, especially if you’re not sure the absolute statement holds true. For example, it’s easy to make claims like “I always obey stop signs” as a defendant in an accident case. However, if the opposing counsel proves that you disobeyed a stop sign, it will affect your trustworthiness and credibility in the courtroom.
After the Deposition – Next Steps
Relevant steps after a deposition before trial include:
- Review the Transcript
During the deposition, it’s possible for you or the reporter to make mistakes or miss relevant information in your deposition and its documentation. However, the Depositions by Oral Examination rule of the Federal Rules of Civil Procedure, also known as Rule 30, allows deponents 30 days to review the transcript or video recordings and indicate corrections before the trial.
- Prepare for Potential Follow-Ups
A lawsuit involving other witnesses may require further investigation and deposition. After that, the attorneys may attempt to resolve the lawsuit outside court. But if both parties cannot settle, the case will proceed to trial.
As a result, keep in touch with your attorney to stay updated with changes, new evidence, or settlement offers that may arise between deposition and trial.
Tips for Attorneys Preparing their Clients for Depositions
The following tips will prepare your clients for a deposition. They include:
- Set Clear Expectations
As an attorney, carefully explain the deposition procedures to your deponent, especially if it’s the client’s first deposition. You can start by telling them how unfriendly an opposing attorney may be. Discuss any possible questions they can expect and provide the best way to answer them.
Encourage your deponent to openly share any concerns so you can address them before the deposition. It’s an opportunity for you to gather more facts and key events that may strengthen your legal strategy.
- Conduct Rehearsals
Conduct a mock deposition for your client to tackle reactions and responses that need correction. During these rehearsals, pay attention to the deponent’s demeanor and body language. Enlighten them on the right body language and attitude to maintain during the process. Emphasize the importance of maintaining a professional and calm appearance.
- Provide Resources
You can also provide handouts or reading materials that explain the deposition process, purpose, and key participants involved.
Proper preparation can help you avoid unpleasant surprises during a deposition and trial. By being prepared, you provide accurate and truthful statements during a deposition to protect your credibility and prevent perjury charges. Also, preparing for a deposition ensures effective communication, reduces stress and anxiety, and helps the attorney build an effective legal strategy that will impact the overall success of the legal proceedings.
For a successful deposition, take the legal process seriously to ensure that the case reaches a settlement out of court or is ruled in your favor. Lean on your attorney’s objective advice, negotiate from a strong point, collect evidence, and present it compellingly. If you need top-notch deposition services anywhere within the United States, don’t hesitate to reach out to On Call Legal for a seamless experience.