What can you expect to happen at your deposition?
Expect a very thorough and tenacious attorney on the other side asking tough questions. Expect the unexpected — your deposition will focus on all aspects of the case as well as other information that may not be directly related to the case but still relevant. Don’t underestimate your opponent.
You need to listen carefully to the questions and stay focused. A deposition could last several hours or span several days, depending on the circumstances. Allow your attorney an opportunity to object before answering questions. Remember that a deposition is a legal record, and your attorney’s ability to object before you give an answer, or possibly instruct you not to answer, is crucial.
Remember to answer the question asked, not the question you may want to answer. A deposition is not necessarily the time for you to tell your story. If you cannot answer a question because you don’t know the answer, make sure to state that instead of guessing or attempting to ‘wing it.’ Answer truthfully and don’t attempt to cover up bad facts that you believe may hurt your case.
Maintain your composure and control your emotions during the deposition. Also make sure not to argue with the opposing attorney. Your body language, tone, dress and attitude are all important, because the deposition may be videotaped and later played to a judge or jury.
Do you always need to prepare for a deposition?
Some attorneys may recommend that you not prepare, review important documents or refresh your memory on key facts so you can then testify that you ‘don’t remember’ anything. You have no legal obligation to prepare, and if you truthfully don’t recall something, that’s a correct answer.
Some attorneys believe pretrial discovery is about gamesmanship and keeping your cards face down on the table. They try to keep the other side in the dark as long as possible, which can happen if you don’t prepare for a deposition. Some clients prefer to prepare ‘on the cheap’ and will only meet with their attorney on deposition day to prepare. There are potential benefits to not fully preparing, but in my experience it is typically better to prepare when weighed against the downsides:
- You may look foolish and potentially untruthful regarding key issues.
- You will be less able to put context or spin on important documents, events or incriminatory circumstances.
- You may want to be specific in your testimony at trial and rebut allegations in the case, but a skillful attorney can crush your credibility when you try to change your testimony and explain why you couldn’t recall something at deposition. After all, if you couldn’t remember anything during deposition, how is it that years later at the trial you somehow remember everything?
Scott K. Behrendt is a senior attorney with Theodora Oringher Miller & Richman PC. Reach him at [email protected] or (714) 549-6124.