How Should a Litigant Act at His or Her Deposition?
A deposition is when you are asked questions by the other side’s attorney, under oath. There is typically no judge present: just the parties, a court reporter, and the attorneys. However the opposing party may use your deposition for any purpose at trial. Therefore you should treat the deposition as though you were testifying in court.
A deposition is not like a normal conversation. In most conversations people talk with the goal of conveying helpful information to the other. In depositions, the goal is to answer the questions truthful but not go into greater detail than the question calls for. The most harmful depositions are when the witness lies. However almost as harmful are the depositions in which the witness repeatedly volunteers information to the depositing attorney in a misguided attempt to be helpful.
There are three reasons for taking depositions: 1) learning about the other side’s case; 2) showing the other side their case’s weaknesses; 3) developing evidence to attack credibility. When being deposed, you should expect questions in these three areas.
Opposing counsel will want to learn your view of the facts of the case. Often this is quite a learning experience as the opposing party may not have been fully forthcoming with his or her attorney. However, learning your view of the case also lets the attorney know what needs to be done to counter those views and gives an attorney an idea of the most that you could be seeking at trial.
Opposing counsel may also want to ask questions that highlight weaknesses in your case. Every case has its weaknesses so the key is to not lie or be alarmed in your response. Such questions are a settlement tool, designed to make you understand problems in your case and be more inclined to settle your case. Some attorneys do not ask such questions as they believe it eliminates the surprise element of asking these questions at trial.
Finally, opposing counsel will want to test your credibility. This involves not only your capacity to tell the truth but also your ability to answer questions in a reasonable and appropriate manner and to remember things that you should be able to remember.
Your attorney will mostly be silent. During the deposition, defending attorneys can, on limited bases, object to the form of a question [Rule 30(j)(2), SCRCP] or ask you questions when the other side is finished asking you questions. Other than asking you questions when the other side is finished, during the deposition your attorney can only speak with you to review documents that have not previously been provided in a timely manner [Rule 30(j)(8), SCRCP] or to discuss invoking a privilege (such as attorney-client privilege or the Fifth Amendment privilege against self incrimination) or to discuss terminating the deposition based on the deposing attorney’s improper conduct. Rule 30(j)(5), SCRCP. The deposing attorney is entitled to ask about the nature of such off-the-record discussions when the deposition resumes, although that attorney cannot ask for details of the discussion (i.e., the attorney can inquire into what was discussed but not ask about the details of that discussion). Rule 30(j)(6), SCRCP.
Tips for the deponent:
- 1. Listen to the question and make sure you understand it before you start formulating your answer.
- 2. If you do not understand the question, do not answer it. Instead ask for clarification.
- 3. Once the question has been completely asked and you understand it, answer the question:
a. Do not lie.
b. Do not raise your voice.
c. Do not fidget, or do things that make you appear blase or uninterested.
d. Do not get argumentative.
e. Answer the question fully and completely: a partial response fails to tell “the whole truth” and will be treated as false.
f. On the other hand, do not go beyond the question. It is counterproductive to volunteer information that the question does not call for. The witness who volunteers information or offers information that goes beyond the question is not helping his or her case but is actually helping the depositing attorney.
4. If the question calls for a yes or no response, give a yes or no response. Only explain your response if asked a “why” questions. If necessary, your attorney can always seek your explanation later.
5. Do not guess
a. If you have a general idea of the correct answer but are not sure, it is fair to give a range (i.e., the cost was around $19,000.00; or the date was sometime in mid-November).
b. If you do not know, answer that you do not know. Better to appear ignorant than to answer inaccurately and appear a liar.
Materials prepared by Thomas F. McDow, IV, regarding deposition preparation can be downloaded here.