Rules for giving a deposition

There are seven golden rules

What is a deposition? A deposition is a question and answer session done under oath while a court reporter types down your answers. When the deposition is complete, the court reporter prepares a transcript, which is a word for word typed out book of everything said during the deposition. Civil cases, criminal cases, family law cases and almost all other types of Court cases have depositions. A deposition usually starts with a notice (if you are a party in the case) or a subpoena (when you are not a party in the case). The notice or subpoena will require you to appear at a certain date, time and location. Sometimes the notice or subpoena will require you to bring certain documents with you. This is called a deposition duces tecum. A deposition is a Court proceeding, but there is usually no judge present. A deposition may take place in an informal setting, such as a lawyer's office. Do not be fooled, a deposition is a formal Court proceeding and it is important. Typically, the people who attend a deposition are the lawyers, the court reporter, sometimes a videographer and the person being deposed. If the deposition will be videotaped, the notice for the deposition must say that it will be by videotaped.

Where will the deposition be held? A deposition may be set at various locations, such as a lawyer's office, a Court reporter's office or at the Courthouse. If you are a party to the legal proceeding the deposition location can vary. At times, you may be forced to travel for the deposition, to another County, or even another State. If you are not a party in the legal action, then you are a witness. Typically, a witness can only be forced to attend a deposition near where they live, usually in the same County where you live.

Why am I being asked to give a deposition? Typically, you are asked to give a deposition when you are part of a lawsuit, or if you are a witness in some legal matter. The lawyers may be taking your deposition as a way for the lawyers to learn what you know. Many of the questions may seem irrelevant or unrelated to the legal proceeding. In Florida, lawyers are given very wide latitude in the types of questions they are allowed to ask during a deposition. A deposition may also be done to preserve your testimony for trial. Later, your deposition may be read to a jury or judge at trial. This is often done when a witness will not be available for trial, or lives far away from where the trial will be held.

Is a deposition important? If it is important enough for the lawyers to spend the time and money to take your deposition then yes, your deposition is important. Before you show up, remember, what you say in a deposition is forever. If you say something stupid, wrong or offensive, it is typed up and kept forever. No deposition should be taken lightly, unless you enjoy looking foolish or worse, untruthful. The only things a deposition and a conversation have in common is that they involve words. A deposition is not a conversation, it is an interrogation. You are asked questions and you must respond. Most people are not used to being interrogated. The process can be intimidating and awkward.

The seven golden rules for a deposition are:

• Answer Only the Question Asked;
• Do Not Interrupt;
• Answer With Words;
• Do Not Think Out Loud;
• Do Not Guess;
• Avoid Always and Never;
• Do Not Get Angry.

One: Answer Only the Question Asked

Remember, a deposition is not a conversation, it is an interrogation. An interrogation is a question and answer session. Wait for the question, then answer only the question they asked. When you have answered the question, stop talking and wait for a new question. If you have not been asked a question, you should not be talking. One question gets one answer. The shortest, most direct answer is typically the best. In fact, if yes or no is a complete and accurate answer to the question, simply say yes or no. If a truthful answer requires more than yes or no, then give the answer, but be brief and direct. Short direct answers sound truthful, confident and persuasive. Remember, answer the question, answer it directly and when you are done answering the question, stop talking.

Two: Do Not Interrupt

Let them finish the entire question before you begin to answer, do not interrupt the question. In conversation this would be bad manners. In a deposition, it will make you look like a fool. A question can change based on something said at the end of the question. As an example, assume a question starts, "did you have back pain", and you interrupt with a "yes" before they finish. You answered thinking they were asking about back pain after the accident. Your deposition transcript may look very bad when the completed question is typed out as "did you have back pain before the accident?" If you do not let them finish, you do not know what question you are answering.

Not only is it best to wait for the entire question, but you should try to wait a full 2 seconds after the question before you begin your answer. First, this will make sure they are done with the question. Second, it will give your lawyer a chance to object if that is necessary. Lastly, it will give you time to think before you start your answer.

Three: Answer with Words

A deposition is transcribed, or typed out, by a court reporter. They can only type words. Even when a deposition is videotaped, the official record is the typed version of the deposition. Avoid answering questions with a gesture, like shaking your head for "no" or holding your hands apart to indicate something was "this big." If you want your thoughts to be clear, say "no" instead of shaking your head. If you want to describe the size of something, do not hold your hands apart to indicate "this big", give a unit of measurement. If you cannot give a measurement, give a comparison, such as saying something was as big as a basketball or the length of a car.

Avoid the dreaded "Uh-huh" and "Un-uh". If you mean yes, say "yes" not "Uh-huh." If you mean no, say "no" not "Un-uh". It would be a real shame if they ask, "are you guilty of murder" and you mean to say no, but you say Un-uh and it gets typed as Uh-huh. You can spend the rest of your life in jail thinking about how much easier it would have been to say "no" to that question.

Four: Do Not Think Out Loud, Just Answer

Thinking out loud happens all the time in a conversation. In deposition, it makes you sound unsure. For example, you may be asked where were you when you saw the accident? You respond "I know I had just past 5th street, those blocks are pretty narrow and I wasn't going very fast so I couldn't have been that far, I think about 50 yards away." Anyone listening to that answer will have doubt about your recollection. Alternatively, assume you were asked the same question and you thought silently for 2 seconds and then said confidently, "about 50 yards away." Same answer, now it sounds confident and convincing.

Five: Do Not Guess, But Estimates are Allowed

Depositions are sworn answers to questions. A guess is not an answer. If you know an answer, give the answer. If you don't know, do not guess.

A deposition is designed to explore what you know and what you don't. Do not feel compelled to know everything. If you honestly don't know, say you don't know. However, don't say you don't know just to avoid a tough question. For example, assume you are asked how many times you drove through an intersection before the day of the accident. You might respond, "I have no idea" because the question is hard to answer precisely. In truth, if you know you drove the through the intersection at least once, you do know, just not exactly. You can answer the question with an estimate of how many times you had been through the intersection.

An estimate is not a guess. An estimate means you know the answer, just not the exact answer. A guess means you have no idea what the answer is and you are just making things up. For example, if someone asked, "what was your speed just prior to the collision?" If you were a sleeping passenger, you may have no idea how fast the car was going before the accident. If you gave an answer, that would be a guess. On the other hand, if you were the driver, you may know your speed before the accident, just not the exact speed. You can truthfully answer with an estimate of your speed. One important note, if you are going to give an estimate, say you are giving an estimate.

Six: Avoid Saying Always and Never

There is no quicker way to become a liar than using the terms Always and Never. It takes just one isolated example to make an Always or a Never a lie. Let's take a common question and answer; "Did you wear your seatbelt on the day of the accident?" A common answer is "I always wear my seatbelt!" First, the question only asked about the day of the accident, not what you always do. You should only answer the question. Second, if they have just one isolated example of you not wearing your seatbelt at some point during your entire life, then you are a liar because you said always. It is a good idea to stay away from words like Always and Never whenever possible.

Seven: Do Not Get Angry, Stay Calm

Anger will shortcut logic and rob you of the ability to give clear, truthful, persuasive answers. A person asking questions may intentionally provoke you, even insult you, in a deliberate attempt to make you angry. It is a trap, do not fall for it. When you are giving your testimony, stay in control, answer the question calmly, clearly and truthfully.