It is a unique aspect of United States litigation that the attorneys are empowered to compel both parties and witnesses to come to the attorney's office or other convenient location and examine them before a court reporter. During this process, the attorneys will have the witness sworn in as in a court of law, and question them under oath asking any and all questions remotely connected to a case and compelling the witness to answer under oath or face sanctions. The transcript of the proceeding is reduced to writing by the court reporter and made into a booklet that can be used in court. These proceedings are called "depositions" and are one of the most powerful litigation tools available to a litigant in an American trial.
Most civil cases are won or lost not in court but during depositions. Experienced counsel, reviewing a deposition transcript, can normally predict the likely outcome of a trial and can make recommendations for settlement accordingly.
Answers given in a deposition can often be used at trial and if a witness alters the testimony at trial from that given in the deposition, that fact can be presented to the judge or jury with devastating results. Most civil litigation attorneys are masters at using depositions to demonstrate their cases and to "lock in" opposing witnesses to set testimony.
Quite often the attorney will link a deposition to another discovery tool, the Request for Production of Documents, which compels a party to come to the deposition with various documents which may be reviewed and copied by the attorney. The usual procedure is for the attorney to examine the documents and ask questions of the witness at length as to the circumstances of the creation of the document as well as their meaning and effect.
Thus the party or witness finds him or herself being cross examined by the opposing party's attorney under oath, with all documents produced for examination, and the deposition may last hours...or days...or even weeks. This writer has known of a deposition in a major case that lasted over two months. Depositions can be noticed to compel a witness to travel hundreds of miles...and, with the right papers filed with the court, may occur in other jurisdictions or even around the world.
One brilliant attorney quipped that since most cases settle before trial, most American attorneys no longer are experienced at trying cases, only in taking depositions. He had a point. Well over 90% of cases do not go to trial but well over 90% of cases have two or more depositions taken. It is common for an American attorney to take a hundred depositions for each trial he or she has conducted.
And, for that reason, the average American attorney is a master at using depositions to the advantage of a case and a litigant must learn the technique of surviving a hostile deposition or may face the collapse of a case, however good the case may be.
This article shall discuss the basic rules of a deposition important to a witness and shall then discuss how to prepare for and conduct oneself in a deposition. This article can not replace actual practice and preparation with one's legal counsel but, if reviewed carefully before such actual preparation, will act as an introduction to the skill set needed to succeed as a witness during the discovery process.
Deposition Rules for the Witness:
Typically, the party being deposed is given written notice at least ten days before being deposed (if a party) or is served with a subpoena personally (if a nonparty witness.) While the date and time is set in the deposition notice, normally those can be arranged for mutually convenient alternative times and dates informally.
Failure to appear for a deposition can subject the party or witness to sanctions or even to contempt of court. The attorney must sign the notice or subpoena but a judge is NOT required to approve the deposition notice or subpoena. This means that a member of the Bar has the power to notice and require attendance at depositions as a matter of law, a power given to American attorneys that is unique in the world for litigation.
It is this power that makes American litigation both extremely expensive and extremely effective. It allows discovery of facts and documents from reluctant witnesses and parties in an adversarial manner long before the trial and allows a party to ferret out additional documents and witnesses. The lawyer has the right to conduct "reasonable" discovery and the Courts have been very liberal in allowing attorneys the latitude to have extensive discovery. While a witness may object to a particular date or a time if there is a conflict with a true emergency, or object to certain improper questions as described below, in general the attorney has the power of the court to compel attendance and compel answers to all questions even remotely relevant to the issues at bar.
The cost of a deposition can vary with the locale, the number of attorneys involved, and its length. A good general rule is that it will cost about two thousand to three thousand dollars a day, give or take five hundred dollars, and if the deposition is far from the attorney's office, you can double that cost. Such expense is only justified in significant litigation and quite often counsel will forgo all the depositions that could be taken simply to save this substantial cost.
The wise party or witness will understand that the deposition arena is one in which the attorney is in control and adjust tactics accordingly. There is seldom any point in resisting the notice of deposition or evading the obligation to testify or produce documents. Nor is there any advantage in treating the process in a flippant or casual manner. It is the most important event in litigation prior to trial and the power of the court to punish those who do not attend or answer questions can be severe. In the case of parties, it can even lead to dismissal of your case or entry of default against you. In the case of non parties, it can lead to contempt of court with civil penalties and other sanctions.
It is far more intelligent to cooperate reasonably with the attorney and party noticing the deposition, attend, and answer the questions and produce the documents with good legal advice ahead of time and with an understanding as to the tactics described below.
THE TEN RULES OF ENGAGEMENT:
1. Each word given in answer in a deposition is transcribed into a booklet which can be used to present evidence in court or to impeach a witness who changes testimony on the stand. Each word. Every word. Once you answer, it is down in black and white and while you can attempt to explain it away at trial, both the judge and jury will view such explanations with a jaundiced eye.
Thus Rule #1: THINK BEFORE YOU ANSWER AND DO NOT BE IN A HURRY TO ANSWER QUESTIONS.
2. The lawyer defending you in a deposition can object to certain questions as to form or being improper but once you begin to answer a question such objections are waived for the deposition. You must give the lawyer a chance to object or you will find yourself being forced to answer questions that are improper.
Thus Rule #2: PAUSE BEFORE ANSWERING ANY QUESTION SO YOUR COUNSEL CAN OBJECT IF WARRANTED.
3. Any answers you give that help your case are probably NOT admissible into evidence. They are considered self serving hearsay and not valid evidence unless you die and are thus unavailable and cannot testify. You must go to court and testify personally, instead. However, deposition answers that hurt you ARE admissible to impeach your testimony if you alter it or as exceptions to the hearsay rule that allow admissions against interest to be introduced into evidence. A deposition is not the place to plead your case or demonstrate your abilities to convince. It can only hurt your case, never help. Your task is to answer truthfully but not to volunteer information not asked for or to elaborate on the facts or your motivations. The lawyer asking the questions is not interested in learning the truth or finding out who is right or wrong. He or she is only interested in building his or her case, making you say the wrong things, and "winning."
Thus Rule #3: ANSWER THE QUESTION BUT VOLUNTEER NOTHING AND RESTRICT YOUR ANSWER TO AS SHORT AN ANSWER AS POSSIBLE-GOOD TEST: IF YOU HAVE TO ANSWER IN MORE THAN ONE SENTENCE, YOU ARE PROBABLY VOLUNTEERING TOO MUCH. NARRATIVES ARE TO BE AVOIDED AT ALL COSTS. JUST ANSWER THE QUESTION.
4. You are being asked for facts that you know. Guesses, opinions, hypothetical situations are not what should be testified to. You will find that those will be used against you in court later and they serve you no purpose since, as guesses, they cannot be used to help your case.
Thus Rule #4: DO NOT GUESS. DO NOT VOLUNTEER OPINIONS. ANSWER ONLY WITH FACTS YOU KNOW.
5. It is often tempting, after hours or even days in deposition, for the witness to become impatient and anticipate questions or volunteer additional information to "speed the process up" and end the annoying experience. Instead of cutting the deposition short, however, such a tactic will actually delay the deposition since any competent lawyer will use the volunteered information to ask even more questions. A common technique of attorneys is to intentionally ask stupid or vague questions and hope that the annoyed witness will begin to feel superior and impatient and begin a narrative answer. This is a trap and must be avoided at all costs. You do not speed the process up by volunteering information or interrupting questions with answers or telling the attorney how to ask the question-indeed, you simply give him or her more ammunition to ask even more questions.
Thus Rule #5: LET THE ATTORNEY FINISH ASKING THE QUESTION BEFORE ANSWERING, DO NOT "HELP" HIM OR HER TO PHRASE THE QUESTION, DO NOT ANSWER A QUESTION HE OR SHE "SHOULD" HAVE ASKED: SIMPLY ANSWER THE QUESTION THAT IS ASKED. VOLUNTEER NOTHING.
6. What the attorney asks or says to you in a deposition is not evidence. What you say is. Thus an attorney will often volunteer "facts" about the case or his client trying to make you open up, even mocking his own client or ideas, chatting about personal issues, creating an atmosphere that is less threatening or even enjoyable in the hope that you will relax and begin "chatting" in return. But all those casual comments of the attorney will not be admissible evidence...instead, your answers, your casual comments will be read to the judge and jury with often damaging effect. Sarcasm, "joking" and the like will not show up on the transcript and a comment made without being serious will appear dead serious and either cynical or harmful.
Thus Rule #6: KEEP IT FORMAL. THE ATTORNEY IS NOT YOUR FRIEND AND THE ARENA IS NOT ONE THAT CAN BE MADE LESS DANGEROUS BY CASUAL CHATTER. SAVE THE CONVERSATION FOR WHEN YOU ARE NO LONGER UNDER OATH: REMEMBER ONLY ONE PERSON'S WORDS ARE UNDER OATH DURING A DEPOSITION: YOURS. WHAT THEY SAY CANNOT HURT THE CASE: WHAT YOU SAY CAN DESTROY THE CASE IN A SINGLE SENTENCE.
7. Sometimes, if being friendly does not work, an attorney will try to intimidate you by asking hostile or even insulting questions or by having expressions of contempt or disbelief when you answer. Parties can attend depositions and quite often one of those parties will express disbelief in a similar manner, often angering the witness or leading to the witness losing control and justifying answers or even arguing...all on the record. In either case, the witness will either be intimidated into answering poorly or angered into verbosity. While your counsel can object to argumentative questions and point out expressions on the record (and even end the deposition if it gets extreme) the fact is that by the time such action is taken the emotional witness may have already given answers that are damaging to the case...and which cannot be taken back.
Thus Rule #7: KEEP COOL AND CALM. NOTHING HURTS THE OTHER SIDE SO MUCH AS YOUR CONTINUED ABILITY TO KEEP YOUR HEAD AND NOT REACT TO THEIR ATTACKS OR DEMONSTRATIONS OF EMOTION. THE COOLER YOU ARE, THE MORE FRUSTRATED THEY WILL BECOME. AND IF YOU FIND YOURSELF LOSING CONTROL OR BECOMING INTIMIDATED, TELL YOUR LAWYER AND HE OR SHE WILL ASSIST YOU. WHATEVER YOU DO, DO NOT REACT WITH ANSWERS BASED ON EMOTION. REMEMBER, IT IS USUALLY JUST PLAY ACTING BY THE ATTORNEY: THEY NEITHER KNOW NOR CARE ABOUT WHAT REALLY HAPPENED-THEY ARE THERE TO WIN THE CASE AND WILL ACT ANGRY OR CONTEMPTUOUS FOR THE PRIMARY REASON OF MAKING YOU LOSE YOUR CONTROL.
8. Your attorney can attend and defend you in a deposition by making objections, asking for clarification for questions and, in general, giving you advice as you go along. His or her role can not be to merely obstruct the deposition but you have the right to consult with counsel either outside the room or inside the room as often as you wish. It is vital that before you answer any question for which you have doubts, you consult with your counsel. You should sit next to your counsel and respond to his or her instructions and you should develop a method by which he or she tells you to stop talking or wait to answer until he or she acts in some way. A common method is to have the attorney touch your arm if he or she wishes you to stop and at that point you should await his or her instructions further. Don't be intimidated if the other counsel becomes angry or states on the record you are being coached or that the attorney is acting improperly. That is to be expected and may be ignored. Above all obey your attorney's guidance and do not ignore their advice. He or she knows far better than you the scope of the case, the significance to the case of your answer and the impression you are making. And if you have to leave the room to consult with your attorney every five minutes, that is perfectly allowable...and much preferable to answering a question wrong. Remember, once you answer incorrectly, that answer is a part of the transcript and can never be nullified. The fact that you asked your attorney about the procedure outside the room may be brought to the jury's attention (perhaps) but is not that damaging...juries expect you to get legal advice.
Your attorney has the ability to "instruct" you not to answer a question but that can only happen if you have not begun answering. If your attorney so instructs you, stop and await further instructions.
Thus Rule #8: USE YOUR DEFENDING COUNSEL IN THE DEPOSITION AND FOLLOW THEIR INSTRUCTIONS AND GUIDANCE. NEVER IGNORE YOUR OWN ATTORNEY AND INSIST ON ANSWERING THE QUESTION. IGNORE THE THREATS AND BOMBAST OF OPPOSING COUNSEL AND FEEL FREE TO CONSULT WITH YOUR OWN LAWYER AS MUCH AS YOU WISH.
9. Often witnesses are nervous and hope to avoid stage fright or forgetting what they know by writing down notes or bringing documents with them for their own reference. Opposing counsel can see whatever you bring in the room to refresh your recollection, whether it is your own notes or not, and quite often will seize that document and use it as an outline to ask even more questions. This is NOT true for documents made for your own lawyer's review or created by your lawyer UNLESS you are using those to refresh your recollection of facts.
Thus Rule #9: BRING NO NOTES OR DOCUMENTS INTO THE DEPOSITION UNTIL YOU HAVE DISCUSSED THEM WITH YOUR OWN LAWYER AND ONLY IF YOU ARE WILLING TO HAVE THE OTHER LAWYER AND SIDE REVIEW THEM.
10. You can't "win" in a deposition. The opposing counsel has all the tools and years of practice. He or she controls the agenda and your answers can only be used against you or not at all. If you get into "game playing" and seek to outthink or outwit opposing counsel you will almost always lose. Attacking the lawyer or other persons, becoming loud or obstreperous merely hurts your own case. It is a common technique for good lawyers to do whatever they can to make you emotional, to make you excited and justifying your position so that you will argue and dispute, ignore your own lawyer, and state things you will later regret. Remember, if you say a hundred good things and one bad thing in your deposition, the only part that will be read to the jury is the part that hurts you. Your job in a deposition is to end it and get out the door as soon as possible. Volunteer nothing. Stay calm. And when in doubt...remain silent.
Thus Rule #10: DO NOT CONFUSE A DEPOSITION WITH TRIAL. AT TRIAL YOU GET TO PRESENT YOUR CASE. AT DEPOSITION, YOU ARE BEING CROSS EXAMINED IN A FORUM WHERE NO ONE CARES WHAT THE TRUTH IS...THEY ARE MERELY TRYING TO GET YOU TO MAKE A MISTAKE AND SAY THE WRONG THING. ANSWER TRUTHFULLY, BUT SHORTLY AND MAKE YOUR GOAL TO BE TO STAY CALM AND GET OUT THE DOOR AS SOON AS POSSIBLE. AT TRIAL YOU WILL GET YOUR CHANCE TO TELL WHAT YOU KNOW...AT DEPOSITION, THE ONLY CHANCE YOU GET...IS TO HURT YOUR OWN CASE.
How to Prepare for Your Deposition:
It makes good sense to meet with counsel to go over the procedures of a deposition and review the questions likely to be asked and the documents likely to be reviewed. At our office, we normally "play act" important depositions with clients to ensure that they know how the "game" is played and answer appropriately. While one can intellectually know what to do, until one has been roughly handled by competent counsel, one does not realize how difficult it is to be a good witness in a deposition. One may start out with the best intentions, but a clever attorney can quickly erode that state of mind and force responses that are remarkable.
The only way to get good at depositions is to practice them and play acting is the safest way. Be sure to ask your attorney to engage in such practice. It may cost some money-but is cheap compared to the cost of making a mistake in the deposition.
It is wise to only review those documents your attorney feels you should know. To review all the documents allows opposing counsel to question you on them when an answer, "I no longer recall what it said," may be actually preferable. Talk to your lawyer.
On the other hand, you should know which documents opposing counsel will have (whether produced by you or not) and be ready for the likely questions to be posed by opposing counsel. A good attorney will read the documents literally line by line and have a dozen questions to ask for each clause. While you cannot be asked about the legal effect of that document, since that calls for a legal opinion, you can be asked as to what you thought it meant and why you felt that way.
In that same vein, it is vitally important for you to educate your own lawyer as to what may be expected in the way of questions and documents. If the lawyer is prepared by you frankly admitting dangerous documents or facts that are likely to arise, the case is far better protected. This writer has been in a position in which a private letter of a client was suddenly produced in a deposition which utterly destroyed the case. It had been a personal letter from an executive to a former secretary which might have endangered the witness's marriage and he hoped that it would not arise. Instead, it arose under the worst possible circumstances, and the disruptive effect upon the witness (his wife was in the room) lead not only to the collapse of the case, but disaster in the marriage.
Privileged communications to an attorney cannot be revealed to third parties absent consent of the client. It is the most powerful privilege known in United States law. It exists so that a client can freely discuss secrets with his or her lawyer and precisely to avoid the type of incident described above.
If there is bad evidence or dangerous documents existing, tell your lawyer. If they do not arise in the deposition, they will probably remain secret...but if they do, the lawyer is ready, willing and able to respond.
Set aside time for the entire deposition and talk to your lawyer about how long it is likely to last. Do not schedule matters near the time of the deposition hoping it will finish "on time." Opposing counsel will quickly note if you are hurrying your answers or tense and will intentionally slow down hoping you will become careless or that you will perhaps volunteer more information hoping to finish sooner.
Plan on meeting your lawyer about an hour before the deposition at a nearby coffee shop to discuss once again the basic facts and to go over the methods of communication you will use during the deposition.
Bring a pad of paper along so you may write questions to your lawyer that are not overhead. (Remember to bring the pad and the notes with you when leaving the room.)
Be sure to get a good night's sleep before the deposition and, in general, prepare yourself mentally and physically as if it were a competitive physical sports event. Being in deposition is exhausting, perhaps more exhausting than any other thing you will do this year. Prepare accordingly.
During the deposition, if you find yourself feeling ill or becoming exhausted, simply tell your attorney and he or she will take steps to protect you. This is not a marathon and the court will not allow an attorney to endanger your health by forcing you to continue if exhausted or ill.
If you take medication, be prepared to so advise the attorney asking questions. They will ask you that question towards the beginning of a deposition (so you cannot later say you were drugged thus not responsible for your answers) and you must be able to let all know what medication you are taking. If it is of a private nature, let your counsel know ahead of time and he or she will make sure your privacy is protected.
If there are matters in your background that you do not wish to discuss or if there is confidential business information that you do not want disclosed during the deposition, there are ways to obtain confidentiality protections in the deposition and you should discuss them with counsel before the deposition. Do not wait until the question is asked since by then you may have already waived the right to object.
AT THE DEPOSITION: SETTING THE STAGE
Most depositions occur in attorney offices, usually in a conference room. At the deposition is a stenographer who is authorized by the state to both take the transcript and swear the witness in. Parties have a right to attend as do the attorneys for the parties, but any other persons may only attend by mutual consent of the parties and their attorneys.
The setting is usually less formal than a court room with the witness sitting next to their attorney and the various other lawyers representing the various other parties scattered about the room. The lawyer noticing the deposition begins the questioning and other attorneys can, but need not, question when he or she is done. There are normally breaks every hour or so with breaks for lunch. Unless specially noticed or agreed by all the parties, depositions occur during normal business hours and the notice normally provides that they will continue "day to day until completed."
After all shake hands, the attorney noticing the deposition usually asks the reporter to swear the witness in. After the oath is given, the lawyer will normally have a relatively long introduction, explaining what a deposition is, asking if the witness understands how important it is to answer truthfully, and asking if the witness is well enough to answer and under any medication. The lawyer for the witness (hereafter called the "defending lawyer") is quite often almost entirely silent, taking notes, and only speaking to ask for clarification of a question or to object to certain questions for the limited grounds allowed for objection in a deposition.
While defending attorneys differ in how much they "protect" the witness, in reality there are few objections allowed in a deposition and general guidance and reassurance are what is normally called for. There can be hotly disputed arguments in the deposition between counsel and if the defending counsel feels a question should not be answered under the law, he or she will direct the witness not to answer and the solution is for the attorney noticing the deposition to either call the court for an immediate ruling or, more commonly, set that question aside for a later motion to the court to compel an answer. Even more common, the attorneys huff and puff for a while, then agree on a rephrasing of the question.
The most important task for the defending attorney is to prepare the witness BEFORE the deposition begins, discussing the evidence, the rules, and how the questions should be answered. A well prepared and trained witness will need almost no protection in the actual deposition and the attorney will sit silently almost the entire time-but all the attorneys in the room will soon realize that the witness is well prepared and adjust their views of the case accordingly.
Assuming a Request for Production of Documents was served with the deposition, quite often the first order of business is for the witness to produce the documents and for the lawyer and his or her assistants to read through them one by one and ask questions concerning them. (An expensive process since all the attorneys are sitting about billing while this slow process occurs. For that reason, witnesses often produce documents voluntarily before the deposition to avoid such waste of time.)
Most attorneys will avoid intimidating a witness and, instead, try to get the witness to "open up" by creating as relaxed an atmosphere as possible. Indeed, the better (and more dangerous) the attorney, the more incompetent and relaxed he or she may appear. There is a tendency of the witness, previously nervous at the formality of a deposition, to feel relief and begin to volunteer information. Guard against that.
Many attorneys will seek to literally bore the witness into carelessness, asking obvious and "easy" questions for the first two or four hours, speaking in a monotone, and towards the end or when the witness is day dreaming, suddenly stating that they have "only a few more questions" and then launching into a series of questions that, if not carefully answered can destroy a case. It is vital for the witness to realize that each question is equally important and that the transcript is not read "in order' to the jury...they are simply read those portions that help the questioner. Thus, what appears to be a casual question asked on the way to take a break for lunch may be thundered to the jury at trial and become the central piece of evidence presented.
Again, each word of the witness is vital and boredom or tiredness cannot be allowed to interfere with constant vigilance. Most depositions are not sprints but require the ability to remain alert and careful for a day or longer. Good counsel will ask easy or unimportant questions for the first few hours to put the witness at ease or bore the witness and ask the most damaging questions shortly before a break for lunch or at the end of the day when the witness is already subconsciously relaxing and thinking about leaving the room.
One can never relax or let one's guard down. Each word, every word, whether given at nine thirty in the morning or four fifty in the afternoon, is equally destructive to the case-and remember, the attorney is also gauging your ability to withstand the grueling conditions of cross examination and this writer has had opposing counsel state that they would not settle a case since they felt our witness, who had done badly in deposition, would never stand up to cross examination at trial.
One can ask for breaks as often as really needed and one need not submit to abuse or badgering...but attorneys are allowed to ask questions that are relevant and to pursue where the answers lead as much as necessary to discover facts even remotely connected to the case. Again, courts let the attorneys have tremendous freedom of discovery and absent remarkable abuse, will not stop an attorney from engaging in long and complex depositions.
TRIALS VERSUS DEPOSITIONS
Preparation for testimony at trial is radically different than preparation to survive a deposition. It is at trial that one gets the freedom to present one's own case before a trier of fact, such as a jury or judge, who cares about the truth. It is in trial that one opens up and reveals voluntarily the history of the matter. In a separate article we discuss the "rules" of testimony in court. The point here is not to confuse two very different forums with very different agendas.
Depositions are extremely difficult for intelligent articulate people precisely because they are NOT allowed to tell their story and are forced to remain stolid and unresponsive. It is this writer's experience that the best deposition witnesses are children or the less articulate who do not feel the need to communicate what they see as the facts. A potential witness would do well to remember the following quotation: Explaining is generally half confessing.-Sir Henry Taylor, 1882.