Preparing to be deposed in a civil litigation can be a daunting task. A deposition is a key fact-finding tool of pretrial discovery, in which a party or a witness is asked a series of questions under oath. In a typical case, the questions are asked by the party who is adverse to your case. The deposition typically takes place in an informal setting such as a lawyer’s office, rather than in a courthouse. However, a court reporter is present during the deposition, and the questions, along with your answers, are transcribed and may be used later in the context of the trial. Therefore, it is important to approach your deposition with care.
It is best to meet with your lawyer before the deposition, so that you may review what you can expect, and what will be expected of you, at the deposition. However, keep in mind that the New Jersey court rules permit your lawyer to object to questions for very limited reasons. For the most part, the questions asked must be answered.
The following tips address the most common issues to keep in mind in preparing for your deposition.
- Think before answering!
Not only will this provide you with time to formulate a thoughtful answer; it will also give your attorney the opportunity to raise objections.
When formulating a response, remember to answer only what you know, and nothing more. And be precise: if you are paraphrasing a conversation, giving a direct quote, or providing an approximation, say so.
- Listen carefully to the question asked.
If the question is confusing, contains terms that you do not understand, or contains multiple parts, do not guess at a correct answer. Instead, ask the examiner to repeat the question, or to rephrase it. If you still do not understand what is being asked, say so, but do not help the examiner by suggesting a “better” way to ask a question.
Don’t allow the examiner to put words in your mouth by asking you to accept his or her characterization of something, or by asking a question containing information that you feel is untrue or ambiguous. Don’t allow the examiner to re-phrase your prior testimony, or summarize it inaccurately. If you disagree with something stated by the examiner, say so. Otherwise, you are adopting the words the examiner uses.
- Answer truthfully, but do not volunteer information.
Provide succinct responses to questions answered. Avoid the natural tendency to “help” the person asking you the questions by providing additional information. This is especially true if the examiner pauses after you have completed your answer, looks at you expectantly or doubtfully after you answer, or questions whether you’ve answered a question completely.
Do not suggest an answer to an ambiguous question, or educate the examiner on an issue that he or she seems confused about.
Similarly, do not speculate on an answer that you are not sure of. Avoid giving your (or others’) opinions on a topic.
If you are asked about a document marked as an exhibit, take time to read it fully, and then answer only the question that was asked.
- Remember that your answers are being transcribed.
Because your words are being recorded, speak clearly and be sure to remain respectful. Do not express anger or hostility, and do not make jokes, even if the examiner seems to invite it. Provide answers in full sentences, and do not interrupt the examiner. If the examiner cuts you off during your response, allow him or her to finish. Then state that you had not finished your answer, and finish it.
- If you don’t know an answer, say so. And never say never.
There is nothing wrong with answering “I don’t know” or “I don’t recall,” if you don’t. Avoid the temptation to guess at an answer simply because the examiner asks it or suggests that you should know the answer.
The examiner may try to back you into providing a detail on something that you do not know or recall, by suggesting a range of possible responses and then narrowing you into a corner.
Similarly, avoid superlatives. Saying that you “never” or “always” do something is often easy to use against you later.
- Remain calm.
You may be caught in an inconsistency. You may be asked a question that reveals a weakness in your case. You may realize that you have made a mistake in a previous area of your testimony. Don’t allow these setbacks to cause you to lose your composure. Instead, correct mistaken testimony when you realize you’ve made it, and remember that inconsistencies or weaknesses can be addressed by your lawyer, by questioning you separately during the deposition, or at trial.
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