Preparing For Your Deposition in California Litigation

My name is Gregory Brown and I am a business and trial lawyer with the law firm of B&C.

At Brown & Charbonneau, LLP it is our goal to help educate our clients about the litigation process.  This helps them prepare for each phase of the case, as well as arm them with valuable information to help them make better informed decisions.  One such area is the client’s deposition – or sworn testimony under oath.

 

1.  Depositions are part of the discovery process that parties conduct before trial to learn about the facts and claims of the other side. A deposition typically takes place in a law firm conference room and consists of a witness (you) being asked questions under oath by the lawyers on the other side.  All of the questions and answers in a deposition are transcribed by a court reporter and the transcript becomes part of the discovery material that can be used at trial. Your lawyer will attend the deposition for the purpose of protecting you from unfair, misleading, unclear or irrelevant questions (your lawyer will object to those questions). Your lawyer may ask you some questions to correct, expand upon or clarify the answers you gave.

2.  It is important that you take time to prepare for your deposition, both with your attorney and on your own.  Since most cases settle before trial, this may be your only chance to tell your side of the story. How well you do in your deposition often has a significant impact on the case, including the settlement value of your case, so it’s important to do well.  Remember that your deposition testimony is binding testimony under oath.  There are exceptions.

3.  While the deposition will be held in an informal setting, your attire and appearance should still be considered. Dress conservatively or “business casual.” Again, you are trying to make the best impression possible. This is particularly important when the deposition is being videotaped, as it may be shown to the court or jury at trial.

Preparing For Your Deposition in California Litigation

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4.  Since the lawyer is evaluating your credibility and likeability, try to make a favorable impression. Do not get angry or defensive. It is okay to get genuinely emotional during your testimony. One of the Deposition goals is to have the attorney leave the Deposition understanding what a nice, likeable and credible person you are.

5.  Take your time and think before you speak.  Listen to the question and understand it before you answer. Sometimes lawyers ask questions that don’t make sense. Before you can answer a question truthfully, you must understand it. Don’t be shy about asking the lawyer to repeat or rephrase a question.

6.  If possible, try to answer all questions with: “yes”, “no”, “I don’t recall”, “I do not know” or “I do not understand your question”.  This is Greg’s “Rule of 5”.

7.  Do not volunteer information.  Answer only the question asked.  Do not try to explain your answers, unless you and your attorney decide that in a particular instance, you should.  This ALSO includes documents.  Do not identify documents unless specifically asked.

8.  Do not guess. Sometimes telling the truth and being accurate mean saying, “I don’t know” or “I don’t remember.” OftenPreparing For Your Deposition in California Litigation witnesses feel that they should know the answer or remember the answer, so under the stress of the moment they make up an answer.  Do not do that. If you don’t know or don’t remember, say so. If you are asked about dates, times or other specific questions, don’t guess. If you can approximate or give ranges, do that, but always make it clear that you are approximating.

9.  Documents are often used in Depositions such as  photographs, business records, contracts, pay stubs, tax returns, etc. If you are asked about a document, take time to look at it and read it before you start answering questions.  If document not provided, it is ok to ask to see the document.  Or, if they do not provide it, it is ok to say something like “well, without looking at the document, I would say X but I would need to see the document to be sure.”

10.  Do not let the examiner put words in your mouth or “summarize” your response.  Attorneys may try to alter your answer slightly by “summarizing” a prior answer as part of another question.  Be careful.  Your attorney, of course, will be watching for this as well.

11.  Be careful about giving absolute answers unless you are sure. The adverse attorneys may try to catch you in a contradiction. Be careful about giving absolute answers (“absolutely yes”, “I am 100% sure”, etc.) unless you’re sure you are right. It can be damaging to your case to testify that to a fact with certainty only to be shown an email or some other evidence later showing you were not correct. When in doubt, use less absolute answers like:

  • “As I sit here right now, I think you are correct”, or
  • “Without looking at any documents, I am pretty sure that never happened”, or
  • “Off the top of my head, I think we did do that”

12.  Everyone can make a mistake in a deposition.  It is not the end of the world.  If later in the Deposition you realize that you

Preparing For Your Deposition in California Litigation

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made a mistake in prior testimony or need to add something, tell your lawyer.  Then, if necessary, the testimony can be corrected or supplemented right then so that the transcript is completely truthful and accurate.

13.   Tell the truth. Again, it is critically important that your testimony be 100% truthful. You are under an oath to tell the truth just like you would be in court. Remember that the Internet allows attorneys to research and verify many things. Subpoenas can also be used to uncover information.  Being caught having said something inaccurate, intentional or not, can hurt your case. Honesty is truly the best policy.

14.  Avoid humor or levity.  It could be taken out of context or fall flat, neither of which helps you and can only hurt.

15.  Listen to objections.  There may be some information about problems with the form of the question that could be helpful.  Remember, pause a bit when answering so your attorney has a change to object when necessary.

16.  Do not educate the examiner.  Similar to not volunteering above.  If there is something technical that the examiner clearly does not understand (like complexities of your business), do not educate or help them understand.

17.  Help the Court Reporter. Your testimony will be transcribed by a Court Reporter. This can be done accurately only if you wait for the question to be finished before you start to answer. Also, your answers must be verbal (no head shaking or nodding) and understandable: say yes or no, not uh huh.

18.  Remember to take breaks.  If you are uncomfortable or have a question, ask for a break. If you get tired, confused or need to talk to your attorney, do not be shy about asking for a break.  For more information on this topic, or if you have other business-related legal issues or disputes, call us today at 714.505.3000 or email us at inquiries@bc-llp.com.