What a Deposition Is & How to Handle It

Under the law, the defense attorney has a right to take your « deposition. » This means that you will be put under oath, just as you would be in court, and the defense attorney will ask you questions relating to your case. His questions and your answers will be taken down by a court reporter. I will be present with you during this deposition.

There will be no judge or jury present. However, after the deposition is over, the court reporter will type out all the questions and answers, and both myself and the defense attorney will receive copies. The original will be filed with the court.

If your case goes to trial, this deposition may be used in court in cross examination by the defense attorney should your testimony at trial be any different than your testimony at the time of the deposition. For this reason, it is extremely important that you have everything in mind concerning the cause and nature of your injuries at the time of the deposition.

The defense attorney in this discovery deposition can ask you questions that are admissible in court under the rules of evidence. In addition, he can ask you questions that may seem to you as if they are none of his business and that, actually, under the rules of evidence, would not be admissible in court. However, the courts allow « discovery » in these depositions, and the attorney may ask you anything that will enable him to make further investigation of the case and further prepare to defend it against you.

One of the purposes of your deposition is to assist the defense attorney in evaluating this case for settlement purposes. This is often the first and only opportunity for the defense attorney to see you before the case comes to trial. Therefore, you should answer the questions in an honest and straightforward manner, so the attorney will be impressed with the fact that the jury will know, if the case is tried, that you are completely honest and sincere.

The defense attorney will get all possible information regarding the names of witnesses, doctors, and items of that nature to assist him in completing his investigation of the case and preparation for trial. He will get you committed under oath to all of the facts concerning the cause of your injury and the nature and extent of your injuries, so that you cannot say anything different at the trial without being subject to impeachment with this deposition on cross examination.

The attorney may try to trap you into lying. One of the most effective ways to defend a case is to be able to prove that the plaintiff has lied in some way. Proving that you have lied under oath on a deposition is almost as effective as catching you in a lie in the courtroom. Therefore, it is important that you are not trapped into testifying to something that is inaccurate or exaggerated. For this reason, listen to each question carefully and be sure that you understand it before answering. If you do not understand it, ask the defense attorney to repeat it or to rephrase it so you do understand it. When you understand the question, then answer it honestly and in a straightforward manner. If you do not know the answer, do not be afraid to say that you don’t know or don’t recall. No one can remember every small detail. However, you will remember the important things and should give an honest and full answer to questions on these points.

Probably the most important instruction is – Do not volunteer anything. Give a full and complete answer to the question asked but do not anticipate any other question or attempt to answer it. If the defense attorney overlooks any relevant questions, that is his worry, not yours. We are not presenting our « case » at this deposition and it is not necessary to prove or substantiate anything. Therefore, answer, as fully as possible, the question asked, but do not volunteer any information beyond that answer.

A deposition is nothing to worry about. If you answer each question truthfully, and without volunteering any information not specifically asked for, everything will be fine.