Nuts and Bolts of Preparing For Your Deposition

First, what is a deposition? A deposition is sworn testimony before a court reporter taken before the trial. It can be an audio recording, or audio and video.

It is part of the discovery process, although a trial deposition can be taken to preserve for trial the testimony of a person who may be unavailable for trial, such as a seriously ill or elderly person, or someone planning to be out of the country.

Depositions are often taken of witnesses to a controversial event such as an auto collision, and they may be taken by a party such as the plaintiff or defendant in a lawsuit.

Depositions are rare in family court cases because of the expense. People paying their lawyer by the hour usually do not want to pay for a deposition, unless it is a key adverse witness such as your spouse’s “paramour”.

Depositions are the norm in personal injury, medical malpractice, industrial accident, and insurance bad faith cases.

I know one, only one, lawyer who routinely takes depositions in order to run up costs and cow the opposition. I have seen it succeed, and it disgusts me.

Let’s assume you are a plaintiff in an auto accident, or the petitioner in a divorce. What do you need to do in order to prepare?

1. I ask my clients, at the beginning of the case, to read my two articles, in my blog “Perspectives of a Small Town Lawyer”,, “Something Constructive: How to Organize the Facts in Your Case” and “More About Organizing the Facts in Your Case”. You can find these articles by entering partial phrases into my blog search engine. “How to Organize” or “More About Organizing” will find them instantly.

2. This is where they learn that we collect the “pieces of the puzzle”. We call them “objects”, the people, the documents, the events, the places, and the physical objects that make up their story. This is hard for them, to realize their spouse, spouse’s lawyer, children, the other driver, the school bus driver, text messages, e-mails, letters, bills, receipts, building, physical attacks, altercations, and myriad other things are “objects”.

3. This is because a case is made up of evidence. A witnesses testimony is evidence, but that person may need to produce that phone record, text, photograph, or tax return that confirms the accuracy of the testimony. So, the witness and his lawyer must collect those objects, the pieces of the puzzle.

4. The witness must carefully review the pleadings before her deposition. This is the complaint or petition we filed, or the one served on my client by the other side.

5. Also as part of our preparation, after the objects are identified, and my client’s goals and concerns are listed (Burt’s “top ten lists”), we must work off of a detailed  timeline. It is so effective for a witness to know when he and his wife first met, when their children were born, when that domestic violence petition was filed, or when the accident took place, the claim was filed, the doctors visits took place, and the surgery was performed. We have nifty software that can create a timeline exhibit.

6. Witnesses expect the questioning lawyer to be nasty. Again, I know two lawyers whose persona IS nasty. It is inherent to their personalities. They demean, deride, bully, and insult. It is intimidating and insulting. When pushed to the absolute limit, it is critical for the a lawyer, or the adverse lawyer, to seek help from the Court. That happens only rarely.

7. More subtle, pleasant, and potentially dangerous is the friendly, professional, conversational, and reasonable lawyer. They can get you to give in on points the angry lawyer cannot. And, of course, there are those in the middle, tough, aggressive, but professional and fair.

8. The deponent must prepare for all kinds of potential questioners.

9. After careful preparation, my advice is;

a. Listen carefully to the question:

b. If you can answer, do so directly and concisely. I

c. If you think the answer makes you look bad, but it is basically as “yes” or “no” kind of question, give the answer! Do not try to avoid it or give the explanation before the answer. If the other lawyer will not let you explain, your lawyer will.

d. Do not volunteer facts not requested, become overly friendly, be lulled into a false sense of security by a friendly questioner or be baited into an argument.

e. When you are done, STOP! It seems so easy, but it is not. When you are nervous, you tend to ramble. And some of us just like to hear our own voices.

f. If you don’t know the answer say so, but do not give up too easily.

g. If you know the answer within a range (It was last winter because there was snow on the ground.), then state your range. It might be “Just over six feet.”; or “fifty to 100 feet”; or “between $35,000 and $50,000”. It that’s the closest you can get, say so and stop.

h. If you become tired or confused, ask for a break, water, a restroom, or a snack, and you will usually get it.

i. If your lawyer is objecting or getting angry, do not ignore that! Something is going on! Be alert. Maybe it’s time for you to ask for that break.

j. Above all, tell the truth.

10. My adversaries often say you cannot correct a factual or substantive error. There may be a technical rule about that that I am not aware of, but I disagree. If my client said “Tuesday” and the answer was really “Wednesday”, I have them write that in the errata sheet that the court reporter provides.

11. I always have my client ask to read and sign the deposition. It isn’t that we mistrust the reporter, but they are human too, and we need to correct those  mistakes!

12. At the end, I do not care about a paper copy. I asked for a digital one so I can index and paste the relevant testimony into software I have for that purpose.

13. Cases can be won or lost in discovery, whether by written answers or oral/video testimony.

14. If the deposition is with video,  you must make sure your client is presentable, although that really  is true in any kind of deposition, but remind the witness to an video deposition that the camera will pick up shifty eyes, nervous ticks, and refusals to address the question.

With these basic rules, and a bit of practice, our clients are well prepared for their depositions.

This post was written by Burton Hunter

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