In our experience, clients have one of two reactions to learning that they are going to be deposed as either a party or a witness to civil litigation. Either they are nervous and scared that they will ruin the case by answering the questions posed by the opposing attorney “wrong,” or they are too casual and confident that the deposition will be a chance for them to tell their story and win the case once and for all. In truth, while a deposition is a serious proceeding, proper preparation can help you handle it appropriately. On the other hand, you will not win your case at your deposition, although you may lose it if you are not careful in planning your testimony. Depositions are common in the following situations.
- Contract & Duty Breaches
- Theft, Fraud & Forgery
- Tortious Interference
- Non-Compete Violations
- Partnership Disputes
- Intellectual Property Issues
- Divorce Impacts on Business
- Employment Conflicts
If you find yourself in a position where you need to defend yourself or your business, you should call the experienced litigators of Oberheiden & McMurrey, LLP today for a free and confidential case assessment.
Depositions usually take place in a conference room at one of the lawyers’ offices. They may also be scheduled to take place at the court reporter’s office, a hotel conference room, or other location. Be sure to review the notice of deposition carefully to see when and where the deposition has been scheduled. If you cannot appear at the time at which you are noticed, let your attorney know. It is not acceptable to simply not appear for a deposition, and if you have been subpoenaed and fail to appear, you may be held in contempt.
The deposition notice may be a “notice duces tecum,” in which the attorney has asked you to provide certain documents either before or at the time of the deposition. Be sure you gather all of the requested documents unless your lawyer advises you otherwise, and then provide those documents to your attorney at least a week before the deposition so that he or she can review them and determine what must be produced.
During a deposition, you will typically sit at the head of the table with your attorney on one side of you and the opposing attorney and his or her client on the other side. There will also be a court reporter present with a stenography machine and perhaps a tape recorder. Some depositions are also videotaped, so there may be a videographer with a camera and you may be asked to wear a microphone. The court reporter will take down every word you say as well as all of the questions, objections, or other comments by the attorneys. You may request a break as needed during your deposition for water, a restroom, or other needs. Normally, however, breaks may not be taken while a question is pending. You will have to answer the question before being allowed to go “off the record” for a break.
After the deposition is over, a transcript will be produced of everything the court reporter recorded. You will most likely be asked to review and sign the transcript.
DEPOSITION DOS AND DON’TS
Over the years we have been in practice, we have seen many common mistakes or errors made by witnesses that either make the deposition transcript hard to follow, or, more severely, harm the case. The following list highlights some important areas to remember. Your attorney will review these guidelines, as well as other matters specific to your particular case, at your deposition preparation session.
- DO: Wear business attire and sit up straight, particularly if you are being videotaped.
DON’T: Show up in sloppy clothes, slouch, fidget, or twist in your chair. These actions may make you appear dishonest if the video is played to a jury.
- DO: Answer each question verbally.
DON’T: Answer “mm-hmm” or “mm-mm” or with a nod or shake of your head. The court reporter cannot transcribe these, so a “yes” or “no” is necessary.
- DO: Wait for the question to be finished, and then wait another second before answering to see if your attorney may object to the question.
DON’T: Interrupt the questioner or talk over him, even if he becomes combative. The court reporter cannot transcribe two people talking at once, and you will make the best witness if you stay calm, cool, and collected in the face of every question.
- DO: Answer every question asked truthfully and honestly, unless your attorney instructs you not to answer.
DON’T: Go beyond the question asked and provide an explanation that was not requested. This mistake is probably the most common one we see. While in everyday conversation you would explain your comments to help the other person understand, this is not a normal conversation. Your job is to answer the question that was asked and only the question that was asked. “Yes” or “No” is a complete answer.
- DO: Know the facts of your case prior to the deposition by reviewing them in your mind and going over what happened with your attorney.
DON’T: Treat the deposition as an opportunity to convince the opposing party or attorney that you are right and they are wrong. That is not your job. You are there to answer questions.
- DO: Correct a prior answer if you realize that it was wrong. There is nothing wrong with saying “I just realized that I said the accident happened in June. Actually, it was July.” The deposition testimony needs to be correct and true to the best of your ability.
DON’T: Be afraid to say, “I don’t know” or “I don’t remember,” if that answer is truthful. The deposition is not a memory test and there are no extra points for remembering every detail.
- DO: Listen carefully to the question asked so that you know what you are answering. Also listen to your attorney’s objections, if any, as they may mean that the question is confusing in some way or contains an incorrect fact.
DON’T: Hesitate to tell the lawyer that you do not understand his question and ask him to rephrase it. You should have no confusion in knowing exactly what he is asking.
- DO: Think about the question before you answer it. Again, this gives you time to understand what is being asked and collect your thoughts. Answering as quickly as possible won’t make the day go any faster.
DON’T: Try to figure out why the attorney is asking a certain question or where he is going with his line of questioning. Just take each question as it comes.
- DO: Be comfortable with silence. When you have answered the question, stop talking.
DON’T: Fill in the silence with more information if the attorney does not ask another question immediately. Pauses and silence do not show up in deposition transcripts.
- DO: Read any document you are asked to look at before answering questions about it.
DON’T: Answer a question while you are still reviewing the document. If a question is posed during your review, ask politely if you can finish reading the document first.
- DO: Get a good night’s sleep and eat breakfast before your deposition so that you are well-rested and alert.
DON’T: Bring or take any notes during the deposition, as those will usually have to be turned over to the opposing counsel if you have them with you.
- DO: Be cooperative, truthful, and forthcoming.
DON’T: Act as if you have something to hide.
Experienced Litigation Attorneys
The attorneys of Oberheiden & McMurrey, LLP offer exceptionally profound and distinct litigation expertise. Many of our attorneys formerly served the United States as federal prosecutors and in leading positions within the Department of Justice— and now offer valuable insights, litigation strategies, and impeccable courtroom skills to our clients across the United States.
- Dr. Nick Oberheiden has successfully represented executives, physicians, lawyers, businesses and business owners in a variety of civil litigation matters across the United States. Dr. Oberheiden is trained in negotiations and dispute resolutions by Harvard Law School and he holds a Ph.D. in law as well as a Juris Doctor from UCLA Law School.
- Glenn Harrison is a former Department of Justice Trial Attorney and Special Assistant United States Attorney (SAUSA). Glenn offers clients decades of litigation experience, including an unmatched track record of seventy federal jury trials.
- Lynette S. Byrd is a former Assistant United States Attorney (AUSA). Clients greatly benefit from Ms. Byrd’s experience from the Department of Justice, where she represented the United States in depositions and trials. Ms. Byrd has immense court-room experience and has made a name for herself in state and federal litigation proceedings.
- Elizabeth K. Stepp, a graduate of Yale Law School, has spent the last twenty years litigating complex matters in state and federal courts across the country. Mrs. Stepp has led litigation teams in courts across the country, including but not limited to California, Florida, New York, and Texas.
The attorneys of the Oberheiden & McMurrey, LLP have successfully prosecuted and defended civil litigations in courts across the country, including California, Florida, New York, Washington D.C., Arizona, Georgia, Colorado, Louisiana, New Mexico, Oklahoma, Tennessee, Texas, and many other states.
Clients interested in a free and confidential case assessment should contact former Assistant United States Attorney Lynette Byrd, former federal prosecutor Glenn Harrison, or managing partner Dr. Nick Oberheiden. If your case is an emergency, you should not hesitate to call us immediately, including on weekends.
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