Law Blog

Since beginning my practice, I've been in hundreds of depositions- including client depositions, party depositions, expert witness depositions, and non-party or third-party depositions. With this post, I want to look at what you can expect in your first deposition as a witness so that you can present your testimony in a way that has the most positive impact on a jury. Keep in mind that this post is here to give you an overview only- you should always discuss and prepare for your deposition with your attorney.

Most of us think depositions as formal quasi-inquisitions, where angry attorneys ask confusing and loaded questions to unsuspecting witnesses. While depositions are certainly important and can occasionally be contentious, they are very rarely as dramatic as folks tend to think they will be.

What is a deposition?

Generally, a deposition is part of a lawsuit where one of the parties is allowed to put a witness under oath and ask them questions to learn more about the case. The deposition itself gives everyone an opportunity to find out what the witnesses have to say. Also, it gives the parties a chance to learn how the witnesses will present at trial- i.e. are they credible, are they consistent, are they sympathetic, etc. Lastly, portions of a deposition can actually be trial evidence later on, so sometimes attorneys will take depositions to create a transcript and video that can be played back at trial in case an important witness dies, moves, or becomes unavailable when the case goes to trial.

As a witness, you will be giving sworn testimony, as if you were sitting on the witness stand at trial. You will be placed under oath, and should answer questions truthfully and honestly. There will be a court reporter present typing down everything you say verbatim. There could be a videographer filming the proceedings. After the deposition, you or your attorney will get a copy of the deposition transcript. Like I mentioned above, portions of the transcript (and video) can be designated for playback at trial, even if you are available to testify live at trial. If you say something under oath at your deposition, and then say something different at trial, the attorneys in the case can use your transcript to 'impeach' you- or attack your credibility with the jury, so it is important to be prepared so that you can give consistent testimony.

What does a deposition look like?

Most depositions in civil cases will have, at a minimum, a court reporter, two attorneys (one for the party bringing the lawsuit, and the other for the party being sued), and a witness in the room. Beyond that, there could be a videographer, additional attorneys for other parties in the case, "second chair" attorneys or paralegals there to help their handling attorneys manage exhibits, and sometimes the parties to the case itself. Typically, depositions are conducted in a conference room at the office of the attorney who scheduled the deposition. If the witness is a party to the case, the deposition will usually happen at their own attorney's office. Most of the time, the witness will sit at one end of a conference table with everyone else sitting along the side.

When you get there, your attorney may want to talk with you privately for a few minutes before you get started. If you aren't a party to the case, the attorneys might want to briefly visit with you beforehand. Once the deposition is ready to start, the court reporter will swear you in, and the attorneys will start to ask questions, usually starting with the attorney who scheduled the deposition. Once they are done with their questions, they will "pass the witness," giving the other attorneys a chance to ask questions of their own. If you are a party, your attorney might decide to not ask you any questions, and instead save their questions for trial. Once everyone has had a chance to ask their questions, the deposition will end. After a week or so, the court reporter will send you or your attorney a copy of the transcript and give you a chance to correct any errors. Unless the parties agreed otherwise, you'll have 20-days to make those corrections.

What kind of questions should I expect?

If I'm presenting a client for a deposition, I'll try and spend an hour or two with them to go over some the the questions and topics that are sure to be covered during the deposition. The most important topics are always very case-specific and it always helps to think about them beforehand. For a car wreck case, you might expect plenty of questions like "When did you first see the other car?" "How fast were you going?" "How long had you been driving?" and similar questions. A deposition of an injured plaintiff might cover topics like medical history, treatment, prior accidents or claims, etc. A workplace injury claim may discuss things like safety training at length. Each lawsuit has it's important issues that a case is likely to turn on, and if you can identify those issues, you can be prepared to discuss them at your deposition or at trial.

In addition to fact-specific questions, you can likely expect a large number of questions that seem completely unrelated to the case. For example, you always want to be prepared to answer background questions about yourself. Things like your address, how long you've lived there, how many kids you've had, how many times you've been married, where you went to school, your criminal or arrest record, and even possibly your driver's license number or social security number. Speak with your attorney if you have concerns about answering these questions. Some of these concerns could be addressed by answering the question off-the-record, or some other method.

How should I dress and behave?

Usually, I want my clients to look casual, but not quite informal. You should avoid t-shirts (especially graphic tees) and inappropriate tops. Additionally, for the most part, I don't like for my clients to dress up too much- avoid the suits and ties. Spend a little bit of time making your hair look nice. The goal is to look nice for a jury, but not so nice that you make anyone (yourself included) feel uncomfortable.

As far as how you should behave, be polite and friendly. That can be hard for a lot of folks, and if you know you will have a problem, try and let your attorney know before-hand. On the flip-side, it's important to remember that other than your own attorney, no one in the deposition room is there to look out for you. Your job is not to show up and tell people what they want to hear- it's to provide honest and accurate testimony.

How should I answer questions?

Honestly and concisely. Some of the worst depositions I've been a part of have been when when the witness won't stop talking after they answer the question. As a witness, you want to answer the question and then wait for the next question. Do not volunteer information and testimony that wasn't asked, and try and keep your answers as short as you can without sounding curt or rude. If you can tell there will be a follow-up question, go ahead and make the attorney ask it- don't do their work for them.

It's also never a good idea to answer questions that you don't understand. If a question is confusing to you, let the attorney know that you aren't sure what they are asking. On that same note, if you are asked a question that you don't know the answer to- say so! It is very easy to get yourself into trouble when you start guessing and speculating about specific fact-based questions. If you really must guess about something, make sure that you make it clear that you are not offering testimony that you specifically recall.

A couple more quick notes on this topic: since there is a court reporter there, try not to talk over the attorney who is asking you questions. Make sure that you wait until the question has been fully asked before you start to answer. When you answer, try and speak clearly and audibly. If there is a videographer there, try not to fidget or rock in your chair, and direct your answer to the attorney asking you questions.

Parting Thoughts

The hope in writing this post is to hopefully help you understand what a deposition is just a little bit, so that you can be more comfortable at yours. Remember, a good witness is a prepared one, and you don't have to be a perfect witness to give honest testimony.