Depositions
Most depositions take place in a conference room far away from the courthouse.
What is a "deposition?"
A deposition is part of the discovery process. A deposition is where lawyers question someone who has been sworn under oath, but it is not a trial. If you are involved in any kind of civil lawsuit, including a family law case, you may be deposed and your witnesses may be deposed. Most depositions take place in office conference rooms, and the judge in the case is almost never present. A court reporter will be recording and typing everything that is said, and you may be video-recorded as well.
Most cases involve a combination of written discovery and depositions. Depositions are live and result in real-time answers from witnesses as opposed to written discovery that allows the responding party to take their time and filter their responses with the assistance of their counsel. You can compare and contrast written discovery and depositions here.
How is a deposition different from trial?
A deposition is part of the pretrial discovery process where the lawyers ask questions to try to:
Learn what the other side is claiming and fill gaps in information
Box the other side into a version of their story in a way so that it will be hard for them to change their story later
Expose flaws in the other side's claims to encourage settlement
A deposition can feel a little like trial because a witness is testifying under oath, but it typically will not take place in a courtroom, the judge will not attend, and sometimes only one lawyer for one side asks any questions. Because depositions are part of "discovery," lawyers are allowed to ask questions in depositions about things that they might not be able to ask at trial because it would be irrelevant. As the judge is not present, it is up to the attorneys to ensure that the deposition is conducted properly. In some cases, depositions are routinely conducted and unremarkable, while in other cases depositions are extremely high-conflict and can even lead to physical fights and intervention by the judge on the case.
Why should I consider paying to depose the other party or their witnesses?
Depositions offer several advantages over written discovery methods like interrogatories. A deposition involves real-time questions and answers and observation of the witness's demeanor when they hear a question and respond, including their tone, body language, and hesitation. This provides valuable insight into their presentation, credibility, and the strength of their testimony. Depositions facilitate spontaneous follow-up questions right there, on the spot, enabling deeper exploration of topics and clarification of ambiguous answers. This dynamic interaction can uncover crucial information that might be missed in the more rigid format of back-and-forth written interrogatories that take months. Depositions create a permanent record of the witness's testimony, which can be used for impeachment purposes at trial if the witness tries to change their testimony. While the upfront costs of a deposition may seem significant, the ability of depositions to expedite the overall litigation process and improve the quality of information gathered can ultimately lead to greater efficiency and potentially lower overall costs in the long run.
What do I need to know about my deposition?
Depositions are not taught in law school and lawyers are not required to learn about them after law school. Ignorance contributes to some of the messiness and bad behavior that sometimes takes place in depositions. You need to know the rules and certain concepts to be empowered to deal with common problems that come up in depositions, because your lawyer may not be able to fully intervene due to the nature of depositions and as the judge is not present.
Some fundamentals:
You cannot win your case in your deposition, but you can lose the case. Nothing good can happen in your deposition, but if you make a mistake or behave improperly, something bad can happen. For example, in a 6 hour deposition you may do great for 5 hours and 55 minutes, but if you say the wrong things during the last 5 minutes, you could lose your case, and the first 5 hours and 55 minutes won't matter.
You should view your deposition as an endurance contest. Even 1 hour depositions can be tiring, and you will not know how long your deposition will take going into it. You have to brace yourself and be prepared to go all the way and "outlast" the attorney who is questioning you.
Be comfortable with silence. The most experienced questioners rely on silence as their best friend, because most people do not like awkward silences. People who are uncomfortable with silence volunteer information unnecessarily. Practice answering a question with the simplest, most truthful answer possible, then saying nothing else, no matter who is looking at you and no matter what anyone else is doing. For example, if you answer "No," and no one says anything for 10 minutes, they just sit there and look at you, just wait. Don't say anything. It is up to the questioning attorney to ask the right questions in order to obtain the correct information.
Listen to each question independently for its truth. Some attorneys will employ logical fallacies to try to manipulate you into giving incorrect answers. Click the following link to read about How to Answer Bad Questions.
If you are asked about a document, ask to see it. Do not agree to what a document says unless you are looking at it and can see for yourself. Do not agree that a document says something that it does not say.
Just like trial, credibility is everything. If you speak falsely, guess, overreach, or make assumptions, it will come back to haunt you later. If you do not know something, it is fine to say that you do not know. It is not fine to say that you do not know something that you do know because you want to avoid the question. If you do not remember something, it is fine to say that you do not remember. It is not fine to say that you do not remember something that you actually do remember because you want to avoid the question. You must be honest at all times.
Your testimony at a deposition is the same type of testimony that you will give at trial. The attorneys may be dressed casually and even be friendly with one another and with you, but you cannot let your guard down. Your deposition is a serious, formal event, and the opposing attorney questioning you will be trying to get you to damage your case by causing you to make a statement that will come back to haunt you later. If you are asked a question and you do not understand the question or you are unsure, ask for clarification. Do not assume, and do not guess. Sometimes lawyers ask bad questions by accident, and sometimes they do it on purpose, but if you make an incorrect assumption about a bad question and say the wrong thing, you are the one who will pay the price, not the attorney. Sometimes lawyers will try to goad you and provoke you into an emotional reaction that damages your case. If you have the proper perspective, you will not allow anyone to manipulate you into saying something that is not true or that could be improperly viewed as damaging to your credibility.
Our attorneys have received advanced deposition training from the nation's best educators, including the National Institute of Trial Advocacy. For more information about testifying at deposition or at trial, read our article How to Testify Well.
