Four Keys for Plaintiffs Being Prepared For Depositions

How to Prepare for a Civil Deposition

If you have been injured or suffered through the wrongful death of a family member, one of the more stressful events you think about at the beginning of the case is being deposed by defense lawyers. This post describes part of what to do to turn the stress from this event into positive energy that will make giving a deposition good practice for testifying live in front of a jury.

Before starting on the four keys, a little background information is appropriate. For those who have never given a deposition, the opposing lawyers can question you under oath about virtually anything – as long as it is somewhat related to the case. This would include details about the truck wreck, fraud, doctor visits, lost income, pain and suffering, permanent injury, background, etc.

Your attorney will be there in the conference room when you are deposed, and your attorney can object if an improper question is asked. If your attorney does not object, you must answer the question truthfully. The rules suggested in this post will help you answer the question that is asked truthfully.

The person being deposed in a deposition is commonly referred to as the deponent. The deponent is typically a witness providing testimony in a legal proceeding, and their deposition is a sworn statement taken outside of court and recorded by a court reporter. The purpose of a deposition is to gather information and evidence that may be used in a trial or other legal proceedings.

Attorneys often suggest that deponents consider what they would do if they were taken down to the police station and told you were suspected of being a murderer. How would you answer questions (well, you would call a lawyer but pretend you could not do that – you have to answer the questions in this little exercise) that were asked? Keep this in mind as we go through these four rules.

This post is not a substitute for meeting and spending a lot of time with your lawyers – this is just to give you a taste of how to start getting prepared in general terms for your deposition. Of course, in your case, your attorney would address specific case details that we can’t do here.

So, what are the four keys?

1. Hear The Question

The first key to being prepared for a deposition is to have this firmly planted in your mind – you must hear the question. This sounds so basic – maybe even childish but let’s examine it.

Remember the metaphor of going to a police station and being accused of murder? The detective asks you questions and records your answers. What would you do if he asked you a question and you only heard half of the question? Maybe the fan will come on. Perhaps someone rattles a cup full of ice. Maybe someone coughs. Maybe he is a “low talker,” like in the famous Seinfeld episode. Perhaps he intentionally or unintentionally turns away from you or looks down at notes while talking. Whatever the reason – how would you answer this – “Isn’t it true that …… 3 o’clock ….. at the victim’s house?”

Do you say “Yes” because you were at the victim’s house? That part is true, but is “Yes” a true response to the features you did not hear? What if the parts you didn’t hear included “and you had a gun in your hand” when you didn’t? Would it be truthful or a lie to say “Yes” to that?

Remember, the goal is always to answer the question truthfully and accurately. You have sworn or affirmed. How can you do that if you don’t even hear all of the words of the question? You can’t.

The only time you should answer a question is when you have heard the question. That means every word of the question.

What do you do if you haven’t heard every word of the question?

Ask the person to repeat the question.

Only one lawyer ever (and it was just once) refused to repeat a question when asked by a deponent. That was fine, as the deponent did not have to do anything but sit there. If there is no question asked, no answer is required. When the lawyer realized he could not intimidate the deponent, he moved on.

There truly is much power in this first rule – if you don’t hear the question (all of it), you don’t answer it. If you hear the question (all of it), you follow the rule: to make sure you understand every word and the question as a whole.

2. Understand The Question

So, you heard the question asked. Does this mean you automatically answer? No. You need to understand the question.

Let’s go back to the police station example. The detective is trying to pin a murder on you, and he asks you a question. Very loudly. No doubt about you hearing it. So that’s it. What if the question is in Latin and you (like us) have no idea how to speak Latin? Can you truthfully say “Yes” or “No” or anything else other than “I don’t understand the question”?

OK, maybe that’s a silly example, but the point is valid – you can’t swear or affirm you are telling the truth when you don’t understand the question!

What if the detective asks you a question in English but uses two words you don’t understand? What should you do? Remember that a deposition (or detective interview) is not a conversation but an interrogation. The difference is the goal of an exchange is to understand each other. An interrogation aims to get information (that is, answers) from the person being interrogated. Mainly to get admissions or confessions.

So, if you don’t understand certain words and you still say “No” or whatever your answer is, and that fits the detective’s picture of how the crime occurred, will he be concerned about whether you understood every word? Probably not.

For example – “Did you perpetrate a fraud to gain access to the victim’s domicile?” Most of us don’t use “perpetrate” and “domicile” in everyday conversation – if you don’t know what those words mean, you cannot truthfully answer without getting an explanation.

Similarly, in a civil deposition, you might be asked, “Do you agree that if you saw the truck veering into your lane and did not immediately swerve off the side of the road and dodge the telephone pole, you would be guilty of contributory negligence?” Did you hear that? First step. Always. Did you understand it? Most people who are not lawyers and even many lawyers who don’t practice in North Carolina (one of only a few states that use “contributory negligence”) don’t know what contributory negligence is. How can you agree (“Yes”) or disagree (“No”) if you don’t know what every word is? You can’t. This question has other problems, but we focus on this second key – understanding.

What if you understand every word but not the question as a whole?

Here’s an example – “Did you tell him that after you saw the man, he said to the other guy that the second man had a knife?” Did you hear the question? First step. Always. Yes,  you heard it. Do you understand it? No – which “he” and which “man” and which “guy” is the detective talking about?

OK, bottom line – what do you do if you don’t understand a word or the question? Just like with not hearing – you ask the lawyer to repeat the question and rephrase it or explain what a word means that you don’t understand. It is simple but powerful – you don’t answer questions you don’t understand; otherwise, how will you know you are telling the truth? No matter what the other lawyer may do – what facial expressions – what he or she might say – you are not obligated to answer any question you do not understand. If, for some reason, the lawyer will not make it understandable; you can say, “I don’t understand your question, so I can’t answer it.”

Sometimes deponents are reluctant to say they didn’t understand a question because they fear it would make them look not smart. First, it does not matter what the other lawyer thinks of you. What matters is your testimony must be truthful. Second, most questions that are not understandable are that way because the lawyer confusingly asked questions – not because you lack any intelligence!

If, however, you hear and understand the question, the third key is to take time to think about what the truthful answer is.

3. Take Time To Think About The Truthful Answer

After hearing and understanding the question, the third key is to take the right amount of time to think about what the truthful answer is to the question. “How long is the ‘right amount’ of time?” That’s easy – whatever amount of time it takes you to be able to answer the question truthfully.

Some questions will be easy – “What’s your name” for example. Others will take you some time to think about – “Describe every injury you suffered in the wreck” – you will want to consider this question to answer the question carefully and thoroughly.

Sometimes deponents worry that the defense lawyer will think they are unintelligent if they take too long. Who cares? If you take the necessary time, it doesn’t matter what the defense lawyer thinks of you. You are obligated to answer truthfully, which is all that matters. Ultimately, whether the defense lawyer likes you or not is not critical – what is critical is to answer truthfully, so you do not face attacks at trial because you rushed an answer and gave an incorrect answer.

So, make sure you hear and understand the question, and then take however long it takes to think of the truthful answer. Once you do this, you only need to answer the question asked.

4. Only Answer The Question Asked

Once you have heard the question, understood it, and thought about the truthful answer, the time has come to answer the question and only the question. In some ways, this is the hardest thing in a deposition.

The reason is that defense lawyers often ask questions that “suggest” something negative. For example, “Isn’t it true that you did not even go to the emergency room on the 24th when the wreck happened?” The factual and truthful answer may be “Yes, that’s true,” but you want to add a “but I did go the next day” or “but I thought I was OK and then couldn’t move in the morning” or some similar answer. You don’t want to leave the wrong impression or allow the defense lawyer to create a false impression, so you start to “explain,” “argue,” or “expand” your answer. This must be avoided.

Your obligation is to answer the question.

Not the unasked question (“I knew she was going to ask me how fast I was going, so I went ahead and answered it”). Your obligation is not to argue or explain unless you are asked to do so. In a deposition, you must trust your lawyer to know when to ask you questions and when to save certain matters for trial.

So, as a recap – when a question is asked:

  1. First – did you hear it
  2. Second – did you understand it
  3. Third – think about the truthful answer
  4. Fourth – only answer the question.

There is much more to preparing for a deposition, but hopefully, this article benefits you.

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