What Is A Deposition?
January 25, 2016
David Allen
Partner, Jaburg & Wilk
If you find yourself involved in a lawsuit, either as a party plaintiff, defendant or as a material witness, it is very likely that at some point during the course of the case you will be asked to submit to a deposition. Being told that your deposition has been scheduled may elicit the same reaction as your dentist telling you that you need a root canal, or the IRS notifying you that you are about to be audited. In truth, however, depositions need not be scary or painful as long as you understand what it is, how it works, and most importantly, how to conduct yourself when being deposed.
So what is a deposition? It is a time when the attorneys have an opportunity to ask you questions relating to the case, and you have to provide answers after having taking an “oath” agreeing to testify “under penalty of perjury.” The “oath” is administered prior to the commencement of the deposition by the court reporter, and is the same oath that is administered to witnesses who are called to testify in court (“Do you, Joe Jones, swear to tell the truth, etc.). Once the person being deposed – referred to as the “deponent” – agrees to the oath, they are then subject to potential civil and criminal “penalties of perjury” if it is later determined that they have willfully lied in responding to deposition questions. Beyond that, however, the environment, which is usually a conference room in the attorney’s office, is informal with no judge present to preside over the deposition.
Once the deposition starts, how does it work? Much as you would expect, the deposition proceeds with questions being asked by the attorney conducting the deposition, and with answers being given by the deponent. The non-questioning attorneys, including the attorney representing the deponent, may interject certain allowable objections; however, as there is no judge present to rule on the objections, they are just made “to preserve the record” should the case proceed to trial. On rare occasions, if there are objections or other disputes that require an immediate resolution, most judges will accept telephone calls, and subject to their availability, will resolve such disputes via teleconference during the deposition.
The biggest mistake that many deponents make is that rather than just responding to the questions being asked, they attempt to use the deposition as a platform to “tell their side of the case.” The reason that this is a mistake, and should not be done is very simple: If the deponent says something that is unfavorable for their position, the questioning attorney will be able use that testimony at trial to their advantage during the cross-examination of the deponent. On the other hand, if the deponent says something that is favorable for their position, it will never be used at trial, either by the questioning attorney because it does not help his case, or by the deponent’s attorney, because that favorable testimony will instead be presented “live” at trial, and not through a deposition.
The one thing for a deponent to remember is to always tell the truth, as it always comes out the same, and to only answer questions that they are asked without volunteering anything further, no matter how “helpful” you think any such additional information may be. Following these simple rules will make the deposition experience run smoothly.