16 Mar How to Act in a Deposition: Everything You Need to Know
How to Act During a Deposition
Since most of us shouldn’t have a testimony to even think about, the idea of getting deposed is alarming. The thought of being judged by a roomful of lawyers recording every utterance to pick apart later causes me anxiety. I’m sure you feel the same. Don’t worry, though. Deposition Academy has the answers to all your questions. Check out our handy guide for what to expect at a deposition over here.
It is important to keep in mind that it is still a legal proceeding, even if the judge isn’t there. Because of this, what you say, do, or even wear to your deposition can have an impact on your reliability as a witness and the outcome of the case. So, how should you act at a deposition? Here are 5 easy tips:
- Dress like you were going to court that day.
- Prepare before you arrive.
- Treat all people in the room with respect.
- Wait for the lawyer to finish asking a question before you answer, and speak clearly and concisely.
- Avoid strong emotions, like anger, and joking around.
It seems simple, right? Be honest, respectful, and calm. The way that you answer questions is a lot more tricky, though. Why should you follow these tips? How should you answer? What exactly are lawyers getting at? Read on to find out.
How to Behave at a Deposition
A deposition is an out of court question and answer session, taken under oath, and recorded for later use. It is your chance to tell your version of events and let your voice be heard. They are used as evidence during a lawsuit or to urge a settlement out of court. Depositions are usually taken during the “discovery process.” This is when lawyers try to “discover” all the information about their case before it is taken to trial. As such, a judge will rarely be present at a deposition. There are exceptions, and some state’s procedural laws handle depositions differently than the Federal Rules of Civil Procedure (FRCP). You can find your state’s procedural law here if you’re curious.
So, why did I choose those five tips for behavior? They’re honestly the most important things to remember when you’re at a deposition. Let’s take a look at them.
Firstly, “dress like you were going to court that day.” This is a legal proceeding and you are being judged on how reliable a witness you will be. Deposition Academy has a great guide on what to wear for all people right here. Essentially, be clean, neat, and business-like.
Secondly, “prepare before you arrive.” This is your chance to make your voice heard, but there is a lot of things that could be asked of you. Meet with your lawyer beforehand and prepare some answers so you aren’t caught unaware. Let them know if there are any issues that might hurt your testimony. Review any information that might come up such as medical records, written discovery responses, your timeline of events, etc. Think about how you’d tell your story of the incident and how it impacted your life. Practice answering before you arrive so you can present your testimony clearly, honestly, and concisely.
The third tip should go without saying; “treat everyone in the room with respect.” They are just doing their jobs. Plus, being respectful and polite gives a good impression, which lends credibility to your testimony.
Fourth, “wait for the lawyer to finish asking a question before you answer, and speak clearly and concisely.” This one is actually a two-fold tip. Taking things slowly helps the court reporter keep an accurate record by giving them a little extra time to type shorthand. It also gives you a moment to think about your answer so you don’t say something than can be misconstrued.
Lastly, tip number five might be one of the most important pieces of advice: Avoid strong emotions, like anger, and joking around. It is perfectly normal to get emotional when you’re answering difficult questions. After all, we’re only human. However, what you said flippantly to break the tension or after losing your temper is still being recorded verbatim. The way that you respond to a question is also being evaluated by the lawyers. For example, a calm, honest reply is far more credible than flipping over the table or shouting when you get asked if you cheated on your wife.
Also, since you are under oath, anything you say is subject to punishment for perjury. Penalties include a fine and/or up to five years in jail. Don’t incriminate yourself. Take a breath or take a break if you are having trouble controlling your emotions.
How to Answer Deposition Questions
Aside from the above tips for behavior, there are also ways that you should act when answering questions. The deposition is your chance to tell your side of the story and you want to tell it right. Here are 10 tips for answering questions to make sure your point is coming across clearly.
- Take your time to answer a question, and make sure you understand what is being asked. The lawyers don’t mind. They are getting paid by the hour. Ask the lawyer to clarify or rephrase a question if you don’t understand what is being asked. Again, don’t guess what they’re asking or where they’re going with a line of questioning.
- Don’t make jokes or lose your temper. Remember: An off-color word can hurt your testimony, and a sarcastic tone can’t be written down.
- Say “I don’t know” if you don’t know the answer. Don’t make a guess! This isn’t a memory test, either. If you don’t have the details they’re asking for, say so. Your lawyer is in charge of producing documentation if it’s needed.
- Make sure to answer out loud with a clear voice. Nods, shrugs, etc. can not be recorded by the court reporter.
- Answer a question as simply and honestly as possible, even if it’s embarrassing or you feel like it might hurt your case. If you feel like something might get you in trouble, talk to your lawyer beforehand to prepare an answer.
- Only answer what was asked. Don’t babble, overshare, or try to explain your thought process. The lawyer is trying to get a specific answer, so don’t give them anything extra. A simple “yes” or “no” is really all that’s needed sometimes.
- Beware of leading questions. These are questions that are phrased in a way to get you to agree with something you don’t, or with more than one thing. Ask for clarification or wait for your lawyer to object. Two-in-one questions shouldn’t be allowed.
- Always give a complete answer and then stop talking. If you are interrupted, let the lawyer finish their question. Then, return attention to the previous question to finish your answer. For example, “I will answer that in a moment, but to finish my response to your prior question…”
- Don’t be afraid to ask for a break if you are uncomfortable, tired, confused or just need to ask your lawyer a question. This isn’t the Spanish Inquisition.
- You can correct or expand on an answer you gave earlier in a deposition. Just let your lawyer know that you remembered something and need to revisit an earlier question. The transcript of your testimony needs to be complete and accurate, so don’t be afraid to speak up.
How to Be a Good Witness
During a deposition, the attorneys on both sides are trying to lock-in your version of the story, build their case based on what you tell them, find out what the opposition knows, and evaluate your worth as a witness. They are scrutinizing every answer, every facial expression, your body language, and how you present yourself. Their questions are meant to do more than just get your information.
They are trying to see if you could be used as a credible witness or an unreliable witness. Both could be used strategically to make or break a defense. They do this by assessing your strengths and weaknesses, specifically your emotional state and body language, throughout the deposition. A deposition is allowed to go on for 7 hours in a single day. Any more than that and the lawyers will need to formally request more of your time. During this time, it is normal for your stress levels to fluctuate wildly. Whether you crack under the pressure or remain calm will determine if you would make a good witness.
The ideal witness is honest, open, and consistent with direct and cross-examination. Suddenly changing your tone or facial expressions in response to questions makes it seem like you’re dishonest or hiding something. It has been found that most jurors remember how each witness acted more than specific statements when they are considering evidence during a trial. Consistency and professionalism are extremely important to establish credibility.
Making contradictory statements or falsehoods will also discredit your testimony. The opposition will be trying to find holes in your statement, so be prepared to answer the same question phrased in multiple ways. They want to preserve your testimony and prevent you from changing it if the case moves to trial.
What happens to your testimony after the deposition? Your witness statement will be complied by the court reporter into a document known as the transcription. If it was videotaped, the videographer will time stamp it. Copies will be made for all parties and yourself if you want it. Then, the lawyers will determine what to do with it; take it to court as evidence or use it for a settlement. Deposition academy has a more in-depth article about what happens right here.
Can you refuse to answer a question? Usually, a deponent can not refuse to answer a question, no matter how embarrassing or damaging. However, there are some exceptions. Your lawyer can object to certain questions and you can refuse to answer them because it is protected information. Inform your lawyer of any possible hiccups before the deposition so they’ll know how to help. Check out this article on answering tricky deposition questions.