Help! They Are Taking My Deposition

Some Basics About Your Deposition

The idea of being examined under oath can terrify some people. A client of mine watched Law & Order the night before her deposition. In that episode, the witness was convicted of lying in his deposition and sent to jail. My client could not sleep and ended up vomiting all night! When we got to the deposition she seemed pretty calm, and after we were finished she wondered what she had worried about.

A deposition is a conversation with an attorney where there are some formal rules, and someone recording every word. But at its heart, it is really nothing more than a conversation.

If you have an attorney, he or she should go over the ground rules for a deposition. The attorney taking your deposition should also go over the ground rules with you before you start.

Here is the basic process:

1. You are served with a deposition notice (if you are a party to the lawsuit) or a deposition subpoena (if you are not a party to the suit).
2. The deposition will be somewhere not too far from your home or work. There are various rules regarding where a deposition can take place. If you have any concerns ask your attorney or the attorney who noticed the deposition.
3. You show up for your deposition and give testimony.
4. Shortly after that you have a chance to review your testimony and make any changes.

Here are the instructions I give my clients when someone else is taking their deposition:

1. Tell the truth.
2. Listen to the question, repeat it in your mind and then answer it. Do NOT shout out the first thing that comes to mind.
3. Think about your answers carefully - pretend that each word costs you money, and limit the number of words you use, while also answering the question.
4. You do not want to appear evasive.
5. If you do not understand the question, ask the attorney to re-phrase it.
6. If the other attorney has hit on some important point and you are getting nervous, do not let it show. I can stop the deposition for various reasons, but the fact that the other side has uncovered something helpful to them is not one of them.
7. Get a good night of sleep - depositions can be exhausting, and when people are exhausted, mistakes can happen.
8. Dress well. This is an important event. But don't overdress - you want to be comfortable, and be yourself.
9. Tell the truth.

Here are the basic ground rules I give when taking a deposition - you may hear something like this:

1. I am only interested in finding out what you actually know. This means I do not want you to guess. You can make estimates, but I do not want guesses.
2. If you do not understand a question, please ask me to rephrase it, and I will try to do a better job.
3. The court reporter can only record one person at a time, so please try to let me finish my question before you start to answer, and I will do my best to let you answer before I move on to my next question.
4. The court reporter can only take down sounds. She cannot take down hand gestures, or nods of the head.
5. If you need to take a break at any time, just let me know. However, I ask that you not take a break while there is a question pending.
6. The oath you just took is the same oath you would take in a court of law, and has the same consequences.

Keep in mind that your deposition may last minutes, or it may last days. It really depends on the particulars of your case. A good deposition can turn a bad case into a great case. The converse is also true. I once had what everyone thought was a great personal injury case go up in smoke because my client did a poor job in his deposition and was obviously lying and trying to be evasive. The tragedy in that case was that he was lying about a totally irrelevant and extraneous matter - but the defense attorney could now prove that he was a liar, which undercut his case.

Pete Clancy is a personal injury lawyer at the firm of Clancy & Diaz, with offices in Oakland, San Jose and Walnut Creek.