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Section 2

General Law: What happens at a Deposition?

What happens at a Deposition? A lot!

Your deposition is probably the most important event that happens in your entire case. Believe it or not, it may be even more important than your testimony at trial. As scary as that may sound, it is actually a very simple event.

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 records your testimony with a stenography machine, and then creates a written transcript to be used at trial.

As long as you tell the truth, there is very little to worry about. However, below is a little more detailed explanation with some tips for giving your best and most useful testimony.

What is the purpose of a Deposition?  

Many victims and witnesses look forward to a deposition as their turn to “tell their story.” They want to treat the event as if it is their day in court.  However, the complete opposite is true. The deposition is not “your story”, but rather it is a question and answer session by the opposing counsel.   The opposing counsel is not the decider of fact, that is left to the judge and/or jury. Opposing counsel is not your friend, but rather someone that wants to learn information about your case to later use against you.

The opposing side usually takes your Deposition with three goals in mind. First, they want to find out what facts you have in your actual knowledge and possession regarding the issues in the law suit. In other words, they are interested in what your story is now and what it is going to be at the trial.

Second, they want to pin you down to a specific story so that you will have to tell the same story at the trial and they will know in advance what your story is going to be.

Third, they hope to catch you in a lie, 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.

Depositions follow a different procedure from testimony taken in Court. In Court, we would generally ask questions of you first.  This is called “direct examination,” and this will be your chance to tell your side of the story. At trial and after direct examination, the opposing attorney would ask you questions.  This is called “cross-examination.” However, in the taking of a Deposition, the opposing attorney asks all the questions first, similar to cross-examination in Court.

What are the Deposition Rules

When the deposition begins, most attorneys will provide you with a general statement of the “rules” of a deposition. You should anticipate they will say something along the following:

  1. You understand that you are under oath.
  2. You understand that your answers are being taken down along with the questions, by a court reporter, and will be typed up in the form of a booklet which you will have an opportunity to review once it has been prepared.
  3. You understand that because the Court Reporter cannot take down a nod of the head or other gestures, you must answer each question out loud. With respect to this, please remember to answer with a clear Yes, or No, rather than a Yeah, or Nope.
  4. The attorney will also typically explain that you will have an opportunity to make any corrections in your testimony when you read the booklet, but that if you change your answer, (for example from yes to no), then the attorney can comment on that should the case go to trial. Because of this rule, it is of course, very important to be as accurate as possible.  Remember though, no one can remember every little detail. What is at stake is your credibility.  It is perfectly alright, and even desirable to say you don’t remember, if that is the truth. Sometimes you feel like you should know something, but you just can’t remember it. In that case say, “I’m sorry, it’s just been a long time, I can’t remember that detail.”
  5. Finally, the defense attorney will frequently tell you that he/she does not want you to guess, but they are entitled to your best “estimate” of time, speed, or distance. This is a real trap for the unwary as most of us are very poor on dates, time, speed and distance. It is quite common for a person to answer in a deposition that they were going 60 MPH and was 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.

How to answer questions

A. Make sure you understand. It is important that you pay close attention to each question the attorney asks. Make sure you understand it entirely before you try to answer it. If you do not understand, you should say that you do not understand the question, and ask the attorney to explain the meaning before you try to answer it.

Then, when the question is clear to you, you should answer whatever is the truth to that question. If you know the answer, then of course, you state what you know to be true.  If you don’t know the answer, you should say, “I don’t know”, because that is the truth. If the question calls for something you once knew but have now forgotten, you should say, “I do not remember”, because that is the truth. You should not be ashamed to say, “I don’t know,” or “I don’t recall,” or words to that effect, if that is the truth.

B . Wait until the other lawyer finishes the question before you answer. Do not attempt to anticipate his question. You must listen, understand, answer and stop.  This is a very common problem in depositions. Trying to answer the question before it is finished will make for a confusing transcript, as the court reporter can’t take down to people speaking at once. It also is problematic because the attorney may have a different conclusion to the question than you thought.  Likewise, by answering to soon, you did not allow your attorney a chance to object.

C. Don’t let the other attorney put words in your mouth. You have answered a number of questions, the insurance attorney may summarize your testimony and ask you if Click Here for Part Two of Two

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