One of the most challenging aspects of the litigation process, whether as a plaintiff or defendant, is having your deposition taken. If you are in fact one of the litigants in a case (the plaintiff or defendant), and not merely a third-party fact witness otherwise involved in the case, it is a virtual certainty that you will be deposed during the course of discovery. The deposition itself can last up to seven hours—with some variations by state and locality—and it may be videotaped. Because under ordinary circumstances you are deposed only once, and there are no do-overs, it is important to be prepared for your deposition.
I. Listen to Your Attorney Both Before and During Your Deposition
You should listen to your attorney at all times during the course of preparation for your deposition. That includes if your attorney instructs you to disregard this article that you're reading now. There will be unique factual aspects to your case that only your attorney can evaluate from the standpoint of their legal significance to your case. Your deposition preparation will likely include meeting with your attorney, examining documents pertinent to the case and, potentially, reviewing one or more pleadings filed by the parties in the case (such as the initial complaint).
During the deposition itself, your attorney cannot give you instructions or guidance concerning the nature of the testimony that you are about to give (or just gave). You cannot turn to your attorney after opposing counsel has asked a question and seek guidance as to how to respond to the question. During the deposition, your attorney’s job is to object to legally improper questions by opposing counsel—and that is it. Occasionally, your attorney can ask that the opposing attorney to clarify the nature of the question posed if it is ambiguous or for other reasons. With that being said, apart from these limitations, your attorney can instruct you not to respond to a particular question if the response to the question would entail the divulgence of information protected by the attorney-client privilege. If your attorney so instructs you, it is imperative that you listen (and comply with the instruction), because it is frequently difficult if not impossible to "unring the bell" once otherwise privileged information has been disclosed.
II. Tell the Truth
It would seem axiomatic that you would plan to tell the truth during the course of your deposition. Some witnesses do not adopt this plan. Things frequently do not go well for such witnesses. Aside from the moral dictates that pertain when it comes to telling the truth, as well as court rules (and laws pertaining to perjury), giving inaccurate testimony is also bad for your case. Do not underestimate the amount of information that opposing counsel has at his or her disposal. Also do not underestimate the capability of opposing counsel to marshal documents and/or witnesses after your deposition that contradict sworn testimony that you gave during your deposition.
In all cases, there are such things that are known as “bad facts". It is your attorney’s job, in briefing and at trial, to characterize these facts to the court and the jury within the context of your case in a way that best suits your legal position, and minimizes the potential damage that the facts can do to the ultimate outcome of your case. If you take it upon yourself to try to eliminate a bad fact by offering inaccurate testimony, the results can frequently backfire and cause real harm to your litigation position. Even on a peripheral subject, an untrue statement can damage your credibility on more important subjects in the case.
III. Opposing Counsel is Not Your Friend
It is important for all persons involved in a deposition to conduct themselves with courtesy and professionalism. For lawyers, this duty is enshrined in the rules of professional conduct for your state that govern lawyers’ mode of interactions with witnesses, opposing parties, clients and the general public. Attorneys can be sanctioned by a judge, and even disciplined by their state bar association, if they exceed the bounds of propriety in the course of dealing with you during your deposition. One hallmark of the duty of professionalism of an attorney during deposition is that an opposing attorney is not permitted to lodge a question if it is solely propounded to “annoy or harass” you.
The flipside of this obligation is that there is no duty imposed on the actors involved (the litigants and their respective attorneys) to become chummy or, to take it a step further, to become friends. It is the opposing attorney’s job to represent his/her client—your adversary—with diligence and in that client’s best interests. Thus, be on guard if you find the opposing attorney becoming unnecessarily "friendly" with you during the course of the deposition itself, i.e. while asking you questions. One not uncommon technique is for an opposing attorney to seek to establish a rapport with the witness. Oftentimes, this can result in a sequence of questions to which you readily answer, “Yes," creating a staccato rhythm of opposing counsel asking questions and you saying, “Yes”. Be vigilant if you find yourself in this situation.
After a succession of relatively innocuous, “softball” questions (sometimes as many as 25 to 30), the attorney’s ultimate goal is to ask you a more difficult question, one which is more important to the outcome of the case. The attorney wants you to continue your pattern of agreement and answer “yes” to the question. Your job is to listen to each question carefully and evaluate it independently from the prior question, and also to give thought to your answer before responding.
IV. Depositions are, by Nature, a One-Way Street
Depositions are different from ordinary everyday human interactions, in that the roles are pre-defined; only one person is allowed to ask all the questions. The other person is required to answer nearly all of those questions, save for questions seeking privileged information, or if the question delves into areas that the judge has deemed off-limits for purposes of the case. In everyday life, conversations are usually punctuated by questions from both persons and mutual discussion—a “give and take”. In a deposition, while you can ask for clarification if you don’t understand a question, questions on your part such as, “Why would you ask that?” or “Would there be some way of verifying this information?” are not allowed. The rules are structured this way for various reasons, but the most basic one is that the focus of the deposition is to determine what you know as a fact witness, and what the inquiring attorney knows or doesn’t know is deemed irrelevant for purposes of the case. Opposing counsel is not considered a “fact witness” in the case.
V. Shake it Off
There may come a time during your deposition when you feel that the opposing attorney has obtained a “gotcha” moment at your expense: catching you in a contradiction or introducing some fact or document that you had previously forgotten. Don’t let this throw you off your stride for the remainder of the deposition. There will be many, many more questions during the remainder of your deposition, and if you remain focused on an answer that you gave some 20 minutes beforehand, you will not be giving a new line of questioning the attention it requires.
VI. Prepare Rationally
Should your deposition last a full seven hours, it will entail hundreds (and sometimes over a thousand) different questions covering a range of subjects that touch and concern your case. Your attorney will provide specific guidance concerning your preparation, but suffice it to say that just like in preparing for an exam in high school or college, it is important to prepare carefully and responsibly, but without subjecting yourself to arcane tasks or goals in the course of preparation. It is important not to “ad lib” your deposition preparation by examining documents that you have not discussed with your attorney, or by speaking with individuals about your impending deposition without your attorney’s advance permission. (Your attorney is likely to discourage you from speaking in detail with others about your impending deposition save, potentially, for marital discussions with your spouse.)
VII. When the Last Question Has Been Asked, Your Job is Done (for That Day)
After opposing counsel has asked his or her last question for you, there is no need to seek to add to the record by “volunteering” information that you believe the opposing attorney did not cover during the deposition. In certain circumstances, your attorney may continue the deposition by putting you under oath and continuing your questioning (with questions that seek to elicit information favorable to your case). But it is not your task to seek to “perfect” the record by telling opposing counsel, “I noticed that you asked about X and Y but failed to ask me about Z, and I would like to tell you about that.” That is simply beyond the scope of your role, and can lead to other complications.
The above article does not provide legal advice, and instead provides general information. None of this information is tailored to any specific litigation to which you may be a party.