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What is a Deposition?

March 1, 2018

Simply stated, a deposition is nothing more than a question and answer session where the opposing counsel asks you questions to learn about your case. A court reporter is usually present, and records your testimony with a stenography machine, and then creates a written transcript to be used at trial.  The deposition will be held outside the courtroom, and most often in conference rooms within the defense or opposing counsel’s offices. 

What a Deposition is NOT

A deposition is not the time to tell your side of the story, and there is no judgement produced.  Instead, it is a time when opposing counsel tries to find information that can be used against you in court. Remember, opposing counsel is an adversary and does not have your best interests in mind.  Often, opposing counsel is hired by a huge insurance company to represent the insured/defendant. 

Opposing counsel usually takes your deposition with three goals in mind.

1. They want to find out what facts you have in your actual knowledge and possession regarding the issues in the lawsuit. In other words, they are interested in what your story is now and what it is going to be at the trial.
2. They hope to catch you in an inconsistency, and thereby they can show at the trial that you are not a truthful person and therefore, your testimony should not be believed on any of the points, particularly the crucial ones.
3. They want to pin you down to a specific set of facts so that you will have to tell the same facts at the trial and they will know in advance what version of the facts is going to be.  This will assist in their strategy to counter your position. 

Your deposition is probably the most important event that happens in your entire case. It may be even more important than your testimony at trial because it gives the opposing side an opportunity to formulate an argument to attack your position.

Deposition Rules

When the deposition begins, most attorneys will provide you with a general statement of the “rules” of a deposition.

Understand that you are under oath, which means you have made a formal promise to tell the truth.  Lying under oath is a criminal offense called perjury. 

Your answers are being taken down along with the questions, by a court reporter, and will be typed up in the form of a transcript which you will have an opportunity to review once it has been prepared.

You will have an opportunity to make any corrections in your testimony when you read the transcript, but if you change your answer, (for example from yes to no), then opposing counsel can comment on that should the case go to trial, which may weaken your credibility. Because of this, it is very important to be as accurate as possible.  Remember though, no one can remember every little detail. If you feel you should know something, but you just can’t remember it, a statement like, I’m sorry, it’s just been a long time, I can’t remember that detail, is appropriate. 

Opposing counsel may inform you that he/she does not want you to guess, but to provide your best “estimate” of time, speed, or distance. Be aware, this may be a trap.  Most of us are very poor on dates, time, speed and distance. For example: 

It is quite common for a person to answer in a deposition that they were going 60 MPH and were about 5 seconds before the collision and the other car was only 100′ away. The problem with this kind of testimony is that; at 60 MPH a vehicle is traveling 88′ per second, thus, it would clearly travel more than a hundred feet in 5 seconds, or the time was therefore, less than 5 seconds.

For this reason, be very careful in giving time, speed and distance estimates.

You understand that because the Court Reporter cannot take down a gesture.  You must answer each question out loud. Also remember to answer with a clear Yes, or No, rather using slang words like Yeah, or Nope.

For additional information on how to prepare, please follow our deposition series.