One of the key ways to obtain information in litigation is by depositions. In the most common scenario, these are depositions of the parties. Essentially, a court reporter and the attorneys and the litigants meet at one of the attorney’s offices or the office of the court reporter, the witness/party is sworn under oath, and questions are asked by the deposing attorney. There are many aspects of depositions. This blog explores the five common mistakes in answering and the proper ways to answer deposition questions.
Personal knowledge. In everyday life, we all answer questions in normal human discourse by stating as facts matters we have no first hand or personal knowledge about. This means we have not observed or experienced our statements. This makes communication effective, but it carries inferences, misstatements of fact and incorrect information along with it. Most of the time this does not matter. However, in depositions, to get to an actual fact that has legal weight, this language “baggage” must be shed and witnesses can only testify in depositions and trial about facts based upon personal experience and observation. If you did see it or have personal knowledge of it, that is the answer.
Speculation. Speculation is a close second to lack of personal knowledge. This too is prohibited in depositions and trials. These are objectionable but in a deposition, the question may ordinarily be answered. Speculation is what we assume occurs from the normal course of human events. For instance, if we see smoke in the air and hear a building is destroyed the next day, we might speculate it was from a fire. In reality, a tornado may have later hit the building the smoke may be from an unrelated incident. Good deposition testimony to be the best witness avoids testimony without personal knowledge and is devoid of speculation. If you do not know, that is the answer.
Hearsay. Hearsay is perhaps the most common objection in trials and depositions. This is stating as fact what you heard someone else say. Unless this is the opposing party, it is prohibited as a general rule as a statement of fact. The person who stated the fact must be the person who testifies about the matter. However, some hearsay statements are not made for the truth of the statement, such as Mr. Smith said X, but to prove Mr. Smith was at the scene. This is not hearsay, presupposing you personally observed Mr. Smith at this location. Because hearsay may be asked to establish matters other than the truth of your statement, it is important in deposition or trial you listen to the question, any objections and whether you can answer.
Non-responsive answers. Depositions expose the natural ebbs and flows of language and how often times we answer a question with another question or answers that are not responsive. Many people have perfectly complete conversations this way in life. However, legal questions focusing on establishing precise facts are not well suited to this type of response. It is key the deponent listen to the question and answer it to the best of his or her ability, no more or less. The entire legal system relies on accurate and responsive answers to questions.