Lawyers PI Program
From the Desk of:
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
“Testifying Part 1: The Deposition”
In most civil actions, including personal injury cases in many states, both parties have the right to engage in "discovery" to gather facts from the other party, and sometimes from third party witnesses. A deposition is a type of discovery in which the lawyer for a party takes your testimony.
At the deposition you will be put under oath, just as you would be in a court, and a lawyer, in this case your spouse's lawyer, can ask you a wide range of questions relating to the case. The lawyer's questions, and your answers, will be taken down by a court reporter, and possibly be tape recorded and/or video-taped. A deposition is important and is not something to be laughed off. It was at a deposition in the Paula Jones sexual harassment case that President Clinton denied that he had "sexual relations" with Monica Lewinsky. The result was charges of perjury and obstruction of justice in his impeachment by the House of Representatives (although he was acquitted of those charges by the Senate), a finding that he was in contempt of court by the Federal Judge supervising the deposition (resulting in an enormous financial penalty), and disbarment proceedings in Arkansas.
Any "admissions" in the testimony you give will likely be introduced against you by the other side at the trial or in a motion before trial. Further, your testimony at the deposition will likely be used to cross-examine you if your testimony at trial varies in even the slightest detail from the testimony at the deposition. ("Didn't you say X then and Y now? Was your memory better then or now? Were you lying then or are you lying now?") In addition, if for any lawful reason a person who testifies at a deposition is not available at time of the trial, deposition testimony generally may be used as evidence.
At some depositions the witness or party may also be required to bring specified documents and records, and allow counsel for the parties to review them, to assist asking questions. For example, if there is an issue about what happened on a specified date, your adversary's lawyer may ask that you bring your diary or calendar so you or they can refer to it, and refresh your recollection, so that it is harder to say "I don't remember."
You have the right to have your lawyer present at the deposition, and you definitely should. Your lawyer will help you protect your interests. First and foremost, your lawyer should spend time reviewing the facts with you and preparing you to give a deposition. A deposition is NOT a social conversation. Your lawyer will tell you to listen very carefully to each question and then answer it, and not to volunteer anything or raise other issues. Your lawyer will tell you that if you do not understand the question, ask for a clarification. Your lawyer may object to questions that are vague, improper, misleading, or irrelevant in that they do not relate to the specific case. The lawyer can also prevent the other side from using the deposition to harass you, or turning it into a fishing expedition. In addition, your lawyer may be able to assist you to avoid unnecessarily making statements that will damage your case. In addition, at the end of the questioning by the other side, your lawyer can ask you questions that may bring out, clarify or better present your side of the story.
The proper purpose of a deposition is to gather background and evidence and lock in the stories of the parties and the witness. By getting all the facts which the person may know down on paper, and obtaining whatever helpful admissions are possible from the other side, the lawyers can better prepare the case for trial. In some instances the testimony from the deposition will be used as part of a motion seeking judgment without a trial (such as "summary judgment"), or limit the matters that have to be presented at trial, or create an opportunity for the parties to settle the lawsuit.
The lawyer for the other side will also use the deposition session to evaluate how you are likely to appear to a jury. (Will you, in their opinion, appear likeable and believable, in command of the facts and able to express them clearly? Or might you come across as untruthful, defensive, evasive or arrogant?) That helps them determine whether they want to take the case to trial or what they will offer to avoid going to trial. Similarly, your lawyer will be able to assess your appearance under pressure, and be better able to advise you what you should do in terms of accepting an offer to get the case settled.
There is never a jury present at a deposition, and the number of times a judge is present is tiny (the exception that proves the rule was President Clinton's ill-fated deposition). However, the lawyers may call a judge or another court officer if a dispute arises about whether you have to answer a particular question. Your adversary generally may attend your deposition, just as you generally may attend the deposition of other parties or witnesses in your case.
After the deposition is over, the court reporter will type out the transcript of the questions and answers, and all parties will receive copies. You will have the opportunity to review the record and make corrections, but generally the reporter's word will prevail. (In major cases, where cost is not an object, both sides may have their own court reporters present.) The original may be filed with the court, and become publicly available, depending on the rules of the court or state.
Your deposition, when properly handled, can go a long way in assisting your lawyer in the litigation either by way of settlement or at the trial. What you do at the deposition can help you or hurt you, depending upon your attitude, truthfulness and appearance, as well as the facts and skill of the other side's lawyer.