By Eric J. Parker
For many people, the prospect of being questioned under oath in connection with a pending legal action can be a source of severe anxiety. In many instances, the fear of being questioned, or deposed, as it is known in the practice of law, is actually a fear of the unknown rather than a fear of any particular aspect of the process. This article addresses some common concerns and provides helpful suggestions on preparing for your deposition.
Simply put, a deposition is a process by which one or more parties to a lawsuit can obtain information from another party or witness, under oath. To ensure that the testimony taken from the deponent (the party to be questioned) is accurately recorded and preserved, the law prescribes certain rules for taking deposition testimony. Your lawyer will review these rules with you in advance of your deposition so that you are informed and comfortable at your deposition.
Despite what many people think, a deposition is not an attempt by the opposing side to intimidate or harass you. Under Massachusetts law, any party to a lawsuit has the right to take the deposition of another party, or a witness with information relevant to the case in a dispute valued in excess of $5,000. The most common reason for taking a deposition is to learn what that witness knows or does not know about the facts involved in a particular case. A deposition is often the lawyer’s only opportunity to question another party directly, prior to the trial of the case. The deposition is, therefore, among the lawyer’s most valuable pre-trial tools.
In most instances, the process begins with a notice advising you that your deposition has been scheduled. Sometimes this notice is delivered to your lawyer’s office, which, in turn, notifies you. In other instances, the notice may be delivered directly to you by a constable or someone authorized to deliver such notices. If the notice is delivered directly to you, be sure to call your personal injury attorney immediately and advise her that you have received a deposition notice, or subpoena. Be sure to deliver the papers to your lawyer by mail or by hand as soon as possible.
A deposition may last less than one hour or may take several hours to complete. While most depositions are concluded in less than one day, there are instances where the deposition continues for two or more days. Unfortunately, only the lawyer taking the deposition can predict the length of the deposition.
Prior to your deposition, your lawyer will arrange an office appointment with you to prepare you for your deposition. This is an extremely valuable opportunity for you to review the facts and circumstances of your case with your lawyer before being questioned by the opposing lawyer. It is important that you attend this meeting so as to be best prepared for your deposition. As any experienced trial lawyer will tell you, a difficult case can be greatly enhanced by a good deposition performance, just as a great case can be jeopardized by a poor one. In short, the time and effort you devote to preparing for your deposition are valuable investments in your case and should not be lost.
In preparing for your deposition you should first set aside some time to organize the facts of your case in a coherent manner. This is not to suggest that you should sit up, night after night, attempting to memorize what you plan to say at your deposition. To the contrary, the best deponents are those whose answers come across as unrehearsed and honest. This is also true when testifying before a jury. Furthermore, memorized answers often fall apart when the deposing attorney asks an unanticipated question, forcing the deponent to stray from the memorized script. As your lawyer will advise you, review the facts relevant to your case andstop! Do not attempt to memorize answers to anticipated questions.
One excellent way to prepare for your deposition is to review your written answers to interrogatories. Interrogatories are the written questions — usually no more than 30 — that are sent to you by another party to the lawsuit to be answered under oath. You will likely receive interrogatories before you receive notice of deposition, and your attorney will review your interrogatory answers with you before you return them to the opposing side. While you should not attempt to memorize your answers to the interrogatories, you should take sufficient time to review your answers so as to refresh your memory about the facts and circumstances unique to your case. The interrogatory questions themselves are often clues as to the general nature and scope of the questions you will be asked at your deposition.
When you meet with your lawyer, he may furnish you with a copy of your signed answers to interrogatories. If not, ask your lawyer to provide you with a copy for your review. In either case, follow your lawyer’s instructions about how to best prepare for your deposition. Your lawyer is in the best position to advise you as to what to review and what to avoid as you approach your deposition. Do not bring any written materials with you to your deposition unless you are specifically asked to do so by your lawyer. If you are uncertain as to what to bring with you, call your lawyer and ask.
One bad habit to avoid during a deposition is answering questions before the question itself has been completed. A brief example of this is illustrated below:
Q: How old were you …
Q. … when you first learned to drive?
A. Oh! I’m sorry. I thought you wanted to know how old I was when the accident occurred. Can you repeat the question?
Always wait until the question is completed before you begin your answer. This ensures that your answer is responsive to the question being posed. It is often helpful to slow yourself by repeating the question in your head before answering. Although this method might prolong the deposition slightly, it is far more important that your answers be accurate and responsive than it is that you finish early. Wherever possible, try not to schedule any important appointments directly before or after your deposition. Doing so may cause you to become distracted if your appointment or deposition runs long, which may detract from your performance as a deponent.
A deposition is usually conducted at the office of the lawyer that has scheduled it. While most depositions are scheduled to begin in the morning, some lawyers like to schedule their depositions in the afternoon. In either case, be sure to mark your calendar and confirm your appointment with your lawyer at least one week prior to the deposition. It is also a good idea to call your lawyer’s office the day before your deposition to confirm your appointment again. While depositions generally do proceed on time, certain unexpected matters might prevent one lawyer from attending as originally planned. Calling your lawyer’s office one day prior to the deposition could eliminate a wasted trip in the event that you are not contacted in time. In some cases, your lawyer will ask you to come to his or her office so that you can travel together to the deposition. In other instances, you will be advised to go directly to the office of the lawyer who will be deposing you. The location of your residence or work place is often the deciding factor, so be sure to ask your lawyer where you are to meet when you confirm your appointment.
After arriving at the office of the deposing lawyer, you will probably be brought into a conference room. If you anticipate any special needs, such as handicapped access or periodic breaks for administration of medications, be sure to alert your lawyer in advance. If you arrive at the site of the deposition before your lawyer, be sure not to discuss any aspect of your case with anyone. Even a friendly question about how your injuries occurred could potentially jeopardize your case. While you might have the urge to be friendly and personable, wherever possible, avoid any discussion that relates to the facts of your case or your injuries.
In addition to you and the other lawyers attending your deposition, a court stenographer will also be present. The stenographer’s job is to take down your oral testimony word for word. Different stenographers have different methods of recording your testimony. The most common method is the stenographic machine, which looks very much like a small typewriter. As you speak, the stenographer enters a series of stenographic keystrokes, which are recorded onto narrow sheets of paper. In some cases, the stenographer records the testimony using a voice mask, into which he or she quietly repeats your testimony. Both methods are acceptable and provide accurate means of recording testimony. After the deposition is completed, the stenographer will transcribe his or her notes and prepare a word-for-word transcript of the entire deposition. Because the stenographer is not an employee of the law firm taking your deposition, he or she has no interest in the outcome of your case and, therefore, can be relied upon to provide an accurate and unbiased account of your testimony.
Another bad habit to avoid is the non-verbal answer. Since the stenographer can only record what he hears, a non-verbal response, such as a nod or a shake of the head, cannot be recorded. If you answer a question with a nod of the head, you will almost certainly be stopped by the stenographer and asked to provide a verbal response. Such interruptions can be very distracting and can even force you to lose your train of thought.
After you have been introduced to the other lawyers in attendance, you will be asked to raise your right hand so that the stenographer may administer the oath to you. Just as you will in court — should your case proceed to trial — you will be asked to swear that the testimony you will be giving will be the truth, the whole truth, and nothing but the truth. Needless to say, an oath is an extremely serious commitment. While few deponents treat their deposition as anything but a serious and important event, let there be no issue as to the severe consequences of giving false testimony. Testimony known by the deponent to be false or misleading is perjury. A conviction for perjury carries with it very serious criminal consequences, including the possibility of a lengthy prison sentence.
After you are sworn in, but before you actually begin answering questions, you will likely hear the attorneys discuss what are commonly referred to as stipulations. Stipulations are nothing more than agreements between lawyers as to certain ground rules for the deposition. Because these ground rules are commonly agreed upon, they often are referred to as “the usual stipulations.” By agreeing to the usual stipulations, your lawyer and the other lawyers in attendance agree that they will reserve all objections, except objections as to the form or phrasing of the question and motions to strike testimony, until trial.
This allows the deposition to be completed, in most cases, in one sitting, and yet preserves the right of the objecting attorney to have his objection ruled on by a judge before trial. If the judge later agrees that a particular question was unfair or inappropriate, then it will be stricken, and the question and answer will be deleted, or redacted, from the final version of the transcript. Do not be surprised, however, if you hear your lawyer or another lawyer calling out “objection” during your deposition. In many cases this is done simply to mark the transcript as to that particular lawyer’s objection. If you hear your lawyer or another lawyer object, stop, and wait until you are directed to answer. In most instances where a lawyer has objected to a question, you will be told that you may still answer the question. Since there are some rare exceptions to this practice, it is always a good idea to wait for your attorney to tell you that you may answer the question before you actually begin your answer.
In addition to the stipulations agreed upon by the lawyers, the lawyer taking your deposition will also ask you whether you wish to read and sign your transcript. Although most stenographers are quite adept at accurately recording each and every word spoken during the deposition, there are instances where a word is either missed or inaccurately recorded. To prevent a stenographic error from jeopardizing your case, you will be offered the opportunity to review the transcript for stenographic errors. This usually takes place a few weeks after the deposition has concluded. Later, you will receive a copy of your deposition transcript to review. If you find an error, you will be asked to note, on a separate sheet of paper called an errata sheet, what you believe your actual testimony to have been. The errata sheet is then signed and dated by the deponent and sent back to your lawyer for forwarding to the stenographer. If the errata sheet is not returned within 30 days of its receipt, the testimony may be deemed accurate as originally transcribed. For this reason it is extremely important that you promptly review your transcript once you receive it in the mail.
Because it is well recognized that an alert deponent is a better deponent, it is strongly recommended that you get a good night’s sleep prior to the date of your deposition. Because a deposition requires your concentration, you may find yourself growing tired as the deposition progresses. Should you feel yourself growing tired, advise your attorney so that you may be given a short break. In addition to brief, periodic breaks, you can also expect a lunch break sometime near the noon hour. Of course, you should avoid consuming any alcohol or drugs that might impair your ability to answer questions accurately. If you are required to take medication under a doctor’s order, be sure to advise your attorney so that he or she may decide whether to proceed with the deposition.
One final word about dress. Wear clothing appropriate for a serious and important occasion. Your clothing should convey the seriousness with which you treat your case, yet be comfortable and unrestricting. Clothing does not have to be expensive or formal to be appropriate for either a deposition or trial, but it should be neat and understated. Again, if you have any questions about what to wear, contact your lawyer to discuss it.
This article is designed only as a general guide, and is not intended to answer every question you might have about a deposition. If you have further questions about your deposition, you should contact your lawyer to discuss them.
For more information, please contact us.
About Attorney Eric J. Parker
Eric J. Parker is the Managing Partner and co-founder of the Boston-based trial firm Parker Scheer LLP, with offices in Massachusetts and Nevada. Mr. Parker has 20 years of active experience as one of Massachusetts’ leading civil trial lawyers, and holds the highest peer-review rating awarded to any attorney for professional skill and ethics. Mr. Parker is a member of the American Association for Justice (formerly the Association of Trial Lawyers of America), as well as the American, Massachusetts, and Boston Bar Associations. Mr. Parker is an elected member of the American Board of Trial Advocates (ABOTA; Elected Vice President, Massachusetts Chapter, January 2007), and is a certified member of the Million Dollar Advocates Forum. In 2007, Mr. Parker was appointed to the Editorial Board of Massachusetts Lawyer Weekly, the leading weekly legal newspaper serving the Commonwealth of Massachusetts. Mr. Parker has been named a Massachusetts Super Lawyer by the publishers of Boston Magazine, every year since the distinction was first created. Mr. Parker’s legal practice focuses on plaintiff-oriented tort litigation, including product liability, motor vehicle tort, medical and dental malpractice, premises liability claims, workplace sexual harassment and assault, aviation-related injuries, and wrongful death. Mr. Parker is a Graduate of Vassar College and received his Juris Doctor degree from Suffolk University Law School. In addition to his legal practice, Mr. Parker is also an FAA Certified Private Pilot, and was a founding member of the Board of Trustees of the Media And Technology Charter High School (MATCH) located in Boston (Chairman 2001-2005), the goal of which is to provide inner-city high school students with a successful college education.