The Ball Is In Your Court: Depositions 101
April 07, 2011
What to do if your Deposition is Taken
Katharine M. Nohr, Esq.
Miyagi Nohr & Myhre, Honolulu
Do you sometimes wonder why you are documenting your facility inspections and creating all of those incident reports? Someday, when your organization is embroiled in litigation and you are faced with having your deposition taken, you may appreciate the written record that you so carefully made. When your deposition is taken, you may have the benefit of having an attorney that represents your organization meet with you in advance and possibly represent you during your deposition. However, that might not be the case. Witnesses to incidences do not necessarily have counsel and oftentimes have their depositions taken with barely an understanding of what it is all about. The following information will hopefully orient you to the deposition process so that if you find yourself experiencing the pleasure of being grilled by a shark wearing a lawyer’s suit, you will know what to expect.
Depositions can be taken of any witnesses that might have information about the facts of an incident or accident that might be relevant to the subject of the lawsuit. You will receive a notice of that deposition which will state the time and place. You might also be served with a “subpoena duces tecum”, which will require you to bring with you certain documents that you might have in your possession and control. If you are served with a notice of deposition, you will probably want to speak with any legal counsel that is available to you, who will meet with you and prepare you for your deposition.
You can anticipate that the deposition will probably be held in a law office conference room and you will be seated at one side of a long table with a court reporter seated at the end of the table, taking down everything that is said. Across from you will be the attorney that is asking you questions. Your attorney will sit next to you, ready to make objections for the record. When you walk in, do not be surprised if the lawyer that is going to question you acts like yours and your attorney’s best friend. That attorney’s friendliness is designed purposely so that you will let your guard down and agree to carefully crafted questions that could hurt your organization’s case. Before you have your deposition taken, make sure that you review the documents that you have, such as incident reports and inspection files. This will refresh your recollection as several years may have transpired since the incident.
The following are some tips that most attorneys give their clients before their deposition is taken:
1. Dress in appropriate attire that shows that you take the proceeding seriously.
2. Do not consume any drugs (unless prescription) or alcohol within 48 hours before your deposition. You are likely to be asked about this.
3. Do not engage in any unnecessary discussion with anyone while off the record.
4. Refrain from making nervous movements, such as clicking a pen.
5. Do not chew gum.
6. Listen carefully to all questions asked of you and only answer those questions. You do not need to volunteer any information.
7. If you do not understand a question, tell the attorney that you do not understand.
8. Answer out loud rather than making sounds such as “uh huh” or making gestures that will not be clear on the record.
9. Do not answer each question immediately. Give your attorney a few seconds to make an objection if appropriate.
10. If your attorney makes a specific objection that provides information about objections to the question, such as “objection, vague and ambiguous”, make sure that you understand the question before answering it.
11. If a question is compound, asking multiple questions at once, ask the attorney to break it up into two questions to make sure that it is clear.
12. If a question assumes something that is not true, make sure that you tell that to the attorney before answering the question.
13. Make sure that you wait until the attorney finishes asking a question, before you begin answering the question. You might assume that you know what is being asked, but you may be mistaken.
14. If you are getting flustered or tired, ask for a break. Attorney’s will almost always allow you to take a reasonable number of breaks, but will often ask that you answer the pending question before a break is taken.
15. Keep your emotions in check. Avoid acting angry, defensive, overly emotional, or in any way that will reduce your credibility.
16. Be honest.
17. Do not start sentences with, “I’ll be honest with you” or “honestly”. If you do, it will appear that you have not been honest up until then.
18. If you do not remember something or do not know something, tell the attorney, “I don’t know” or “I don’t remember”. It does no good for a witness to speculate or guess.
19. It is okay if you make an estimate, but if you do, state that you are estimating.
20. You might be called upon to draw a map or a diagram of the incident or accident scene. Practice this before the deposition so you will feel comfortable.
21. You may need to refer to documents, such as the incident report or inspection records to refresh your recollection on events. If you need to do so, tell the attorney this.
Depositions are scary for anyone, but if you keep the above tips in mind, hopefully, your experience will go smoothly. So next time you wonder why you are asked to make an incident report or record your inspections, you can imagine how better prepared you will be and how much more you will remember if you are called upon to give testimony.