Witnesses or principals in a legal suit may give pretrial testimony at a deposition. The testimony of deponents often determines the outcome of a trial or, more often, which side wins a favorable settlement.
What Is a Deposition?
Depositions are pretrial interrogations of witnesses and principals in a legal suit. They're usually scheduled either at the deponent's residence or place of business or, commonly, at the deposing lawyer's law offices. No judge or other court representative attends these hearings, although they may be available by phone.
The relative informality of a typical deposition can be confusing, but the reality is that your deposition is sworn testimony. Anything you say in a deposition can become an issue at trial. Any false statement in a deposition is subject to the same perjury penalty as a false statement made at trial.
The Purposes of a Deposition
Depositions have a few different functions and purposes. For one thing, they take burdens of expense and time off already overloaded court calendars.
A seemingly obvious purpose of depositions is for an attorney to seek needed information from a witness or principal. But beware of this simple explanation. Underlying it is the reality of the adversarial nature of any trial. From a trial lawyer's perspective, eliciting information that helps her client's case and that disadvantages her opponent's case is the most important function of a deposition.
Keep in mind that almost every question the deposing attorney asks has been strategized for inclusion beforehand because your answer may damage your case.
Loose Lips Sink Ships
Copyright attorney Bill Gable describes a suit over hundreds of millions of dollars that his plaintiff's team lost because one of the company's executives volunteered in a deposition that they had been "furious for years" over the other company's violation of his company's copyrights. Saying this established that the company had known about the violations for a long time without making formal objection, which meant that the statute of limitations had expired. They lost the case.
The moral of this story is that anything you say can and very probably will be used to weaken your testimony or your case. Here are some related tips on testifying at a deposition:
- The best answers to any question are "yes," "no," "I'm not sure," I don't know" and "I don't remember."
- If you give a yes or no answer, the deposing attorney may look at you expectantly, as if to say "please explain that." Don't. Expansive testimony is always weak testimony.
- When these answers won't answer the question, answer as briefly as possible.
- Be sure you understand the question and ask the deposing attorney to repeat it whenever necessary.
- Don't try to make friends or get the deposing attorney's approval. He's not your new friend.
- Be unfailingly and distantly polite. Resist being provoked. From the opposing attorney's perspective, any show of emotion, whether negative or positive, is a "tell" that helps the attorney understand how to weaken your testimony at trial.
- Never testify to the contents of any document you haven't read at the deposition. Always ask to read any document before saying anything about its contents.
- Always tell the truth. Experienced trial attorneys get a nose for untruths.
- If your attorney accompanies you to your deposition, she may interrupt your testimony to raise a legal issue or to object to a question. Never overrule your own attorney and answer a question she's objected to.
Goliath Usually Wins
Gable emphasized that some deposing attorneys thrive on a combative atmosphere, where the deponent's ego and an urge to leave the deposition with a win can turn the deposition into struggle for dominance. "One thing deponents really need to remember," Gable told me, "is that the deposing attorney is a professional, expert at eliciting testimony, and that the deponent is an amateur. If it turns into a struggle, understand that the reason the story of David and Goliath remains popular is that the outcome is so exceptional. In reality, Goliath usually wins."