So you received a Notice of Deposition. What is a deposition and what does that mean for you, the witness? A deposition is the legal term for a formal, recorded, question and answer session which occurs when the witness is under oath. A deposition generally serves two purposes: (1) find out what you know; and (2) preserve your testimony for later use (either in motions to be filed with the Court or at trial). The person asking the questions, the examiner, will ask a series of questions aimed at obtaining information which will help his or her client prove their case. But what if you are not a party to the lawsuit? Doesn’t matter- the Indiana Rules of Trial Procedure allow parties to a lawsuit to take the deposition of any person twenty days after a lawsuit has been filed.
Although being on the hot seat will certainly be slightly uncomfortable, if you keep these tips in mind, the deposition is likely to go smoothly.
1. Prepare. If you are not a party to the lawsuit and do not have representation, retain an attorney for the limited purpose of defending you in your deposition. Prior to the deposition, meet with your attorney for a preparation session. Ask him or her to provide expected topics and go over sample questions. If appropriate, you and your attorney may review key documents respecting the lawsuit. Share any concerns with your attorney and ask for guidance on how to address difficult questions. As your attorney will explain to you, most depositions are recorded by a stenographer and not a videographer. However, if the deposition will be videotaped (which you will know in advance as this information will be noted on the Notice of Deposition), be sure to talk with your attorney regarding what to wear for your deposition and remember to maintain eye contact and to be mindful of your body language.
2.Tell the Truth. This is more than an adage for how to live your life. Prior to beginning your deposition, the Court Reporter will place you under oath. Providing false testimony under oath during a deposition is considered the same as lying under oath in Court and carries equal penalties for perjury.
3. Be Mindful of the Transcript. The Court Reporter documenting the deposition strives to capture a complete and accurate recording of your responses. However, the Court Reporter cannot capture inaudible responses so it is imperative that you provide oral responses and avoid “uh-huhs” or inaudible head nods. The best thing about a written transcript is that the reader has no concept of how long it took you to answer the question. The transcript does not show the time lapse between a question and your response and similarly does not show your wide-eyed response or short-lived look of panic following a difficult question. Take as much time as you need to formulate a complete and accurate response before speaking. Do not just blurt out the first thing that comes to mind. Remember- the question and answer will look the same on the transcript regardless of how long it took you to answer. Your words can come back to haunt you so make sure your response is well thought out. Typically, unless waived, you will have the right to review the deposition transcript and correct any errors in your testimony when the transcript becomes available.
4. Answer Only the Question Presented. Your job as the witness is to make the examiner ask good questions. If you do not understand the question, do not answer and ask the examiner to rephrase. If the examiner makes a statement and then pauses, you do not need to say anything. No question, no answer. A deposition is not a conversation. In this respect, be on guard when listening to the questions – do not let the examiner put words in your mouth and do not answer a question that includes incorrect facts or statements of which you have no knowledge. When a question is confusing or misstates a fact, ask that it be restated, or correct the misstatement as part of your answer. The examiner is not your friend. You are not to volunteer information or help the examiner in any way. This is not the time for oversharing.
5. Answer Only as to What You Know. Your response should be limited to what you saw, heard, or did. You can only answer to your perception or memory of a situation or series of events. You should not provide conclusions or opinions on a subject matter (unless you are serving as an expert witness). Do not guess or speculate. If the information was at one point known to you but you can no longer recall the specifics, “I do not recall” is the appropriate response. If the information was at no point known or available to you, “I do not know” is the appropriate response. For example, if you are asked to provide the names of all persons present at a meeting in which you participated but you can no longer recall the names of all parties in attendance, “I cannot recall” is appropriate. If you are asked to state the names of all persons present at a meeting that you did not attend, “I do not know” is the proper response.
6. Stay Calm. Although being questioned under oath can certainly be stressful, do your best to remain calm. Do not raise your voice or argue with the examiner - leave the confrontation or dispute resolution to your attorney. Do not get defensive or apologetic. Just because a situation ended in a less than ideal outcome does not mean you did something wrong. Similarly, just because you cannot recall every detail to a fast paced, stressful situation which occurred months or even years earlier does not mean you did not do exactly what you were supposed to do in that moment.
7. Ask to See Exhibits. If the examiner asks you about a document, always ask to see it before answering questions. Read and study the document to be sure that it is an accurate document with which you are familiar. If you are not familiar with the document, speak up. If the document is an earlier version or if it contains a mistake, make sure you indicate this for record. The examiner can proceed with his or her questions, but the transcript will contain this information. After you have reviewed an exhibit, wait for the examiner’s question and answer only that question. Do not comment on the document or otherwise alert the examiner to any key portions or language.
8. Don’t Be Bullied. If you are interrupted while giving your response, wait for the examiner to finish his or her question, indicate that you were interrupted, and finish your prior response for the record. Do not allow the examiner to rush you into answering or allow him or her to force you to move on to a new topic without providing the opportunity to finish your earlier point. Remember, you are in control of what you say and when you say it.
9. Do Not Help the Examiner. As discussed above, the examiner has requested your deposition to help his or her client. Do not accept homework assignments from the examiner or volunteer to look anything up to provide additional information at a later date. Do not explain the basis for your response or indicate why you cannot answer a question as posed. Do not try to win over your examiner. At the end of the day, it does not matter if the examiner befriends you because he or she does not decide the case and his or her perception of you has no bearing on the outcome.
These are just a few of the considerations you should keep in mind when preparing and participating in a deposition. Your attorney can and will provide additional information prior to your deposition date.
© Riley Bennett Egloff LLP
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