By Weiss Zarett Brofman Sonnenklar & Levy, PCEmail Weiss Zarett Brofman Sonnenklar & Levy, PC
During litigation, whether you are a physician, a business owner, or simply a non-party witness, there will likely come a time that you will be faced with having to testify at a deposition. This article explains what a deposition is and what to expect during a deposition. Part Two of this series will explain how to effectively prepare for your deposition with your attorney.
What is a deposition?
A deposition (or an examination before trial) is a witness’ sworn out-of-court testimony regarding facts relevant to a pending case. A deposition takes the form of a question-and-answer session, which is transcribed by a court reporter. On occasion, the deposition may also be videotaped.
Why is a deposition needed?
Depositions are utilized by attorneys during the discovery process in a civil case to gather evidence and information. The testimony given during a deposition may be used as evidence during trial, in dispositive motions, or even to challenge the witness’s credibility at trial. During a deposition, your demeanor, personality, appearance and etiquette are all being evaluated to determine whether you would be a credible witness at trial, before a judge and/or jury.
Where does it take place and who will be there?
A deposition most often occurs in a law office conference room. Other times it may be scheduled at the courthouse. If you are a plaintiff or defendant in the case, your attorney will be present with you at the deposition. If you are a non-party witness, you may choose to have a lawyer represent you at the deposition – although not required, it is highly recommended. Others present will include the court reporter, the attorney questioning the witness, and potentially the plaintiff and/or defendant in the case, with their respective attorneys. The judge presiding over the case will not be present, although if there are disputes during the deposition, the judge may be contacted to rule on those disputes.
What to expect.
As a witness, you have a right to be treated with professionalism and courtesy by all in attendance. At the beginning of the deposition, you will be asked your name and address for the record. Next, the attorney questioning you will give you some preliminary instructions for the deposition. Typical instructions include the following:
- Please keep all of your responses verbal, as the court reporter is unable to notate hand gestures or nods of the head.
- If you are unclear about a question or have any confusion, please ask for clarification or ask to have the question rephrased.
- The witness must let the attorney finish each question before the witness responds, so the court reporter has a proper record of the exchange.
- The witness is welcome to take a break at any point during the deposition; however, please do not ask to take a break in the middle of a question. Once the attorney has asked the question and the witness responds, the witness is welcome to take a break after the answer is on the record.
It is also typical that the attorney will ask you if you are under the influence of any alcohol or drugs or have any conditions that would impair your judgment during the deposition. You may also be asked if you are required to take any medication that you have not taken that day that would impair your judgment. Those questions are important to ensure that you will not later claim that your ability to truthfully and accurately answer the questions posed was compromised. You should advise your attorney prior to the deposition if you would answer “yes” to any of these questions.
Next, you will likely be asked if you reviewed any documents or spoke with anyone in preparation for your deposition. A discussion on how to prepare for your deposition, including a review of documents, is more fully discussed in Part Two of this series.
Following the preliminary instructions and preparation questions, the attorney will proceed to inquire as to whether you have ever testified at a deposition or trial, your educational background, your employment background, and any additional relevant demographic information.
Once the preliminary and background questions have been posed, the attorney will then focus on questions relevant to the pending litigation. It may feel as if you are simply having a friendly conversation with another person. However, no matter how friendly and civil your discussion with counsel is, you should not let your guard down. Attorneys may try to befriend a witness so that the witness may feel comfortable enough to share with them matters that they have not spoken about with their own lawyer.
When answering questions during the deposition, it is helpful to remember these tips:
- Listen to each question carefully. While the attorney may be asking you a very specific question, you may be prepared to give a full explanation surrounding a particular circumstance. Always listen to the full question being posed so you can answer succinctly instead of providing information that was not requested.
- Think about your answer before responding to the question. If the answer simply requires a “yes” or “no” response, be sure to answer accordingly. If the attorney wants you to elaborate, they will inquire further.
- Take your time when responding. There is no rush to get the answer on the record. Be sure that you understand each question and are giving the appropriate answer. If you do not understand a question, please say so. Lack of understanding a question framed by a lawyer is not a sign of ignorance!
- Be honest in your responses. Remember that you are under oath and if you give a different answer at trial, your previous answer(s) will damage your credibility. More importantly, you could face criminal and civil penalties for intentionally giving untruthful answers.
While the rules of evidence are relaxed in a deposition, you may observe the attorneys make objections to certain questions. A rule of thumb is to pause before giving your answer to allow your attorney an opportunity to evaluate the question and make an objection if necessary. Even if an objection is made, a witness usually must still answer the question. However, your attorney may advise you not to answer. In certain circumstances, the attorneys may decide to contact the presiding judge to rule on an objection.
During your deposition, you will likely be shown various documents, which will be marked as exhibits. The attorney will give you an opportunity to review each document before you are asked questions about it. It is important that you carefully read each document in its entirety before you answer questions about it. It is a normal occurrence for a witness to be shown a document that he/she has never seen before. You should not be alarmed if you are shown a document for the first time and are unable to answer questions about it. The attorney asking you questions will have a reason for questioning you about the document, and may be attempting to authenticate it.
Lastly, the length of your deposition will depend on your knowledge and involvement in the case. For example, as a named party in a commercial case, you should expect a full-day deposition. Alternatively, if you are merely an employee of a business in the litigation with limited knowledge, your deposition may only last a couple of hours. Your attorney will be able to advise you on the expected length of your deposition.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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