Depositions are a way of gathering information about a case that actually involves your active participation with the attorneys. Most other forms of discovery are just through mail or electronic without both (or several) attorneys or a court reporter (who takes the deposition). A deposition is unique in nature because it allows questions to be asked of you and questions on responses that you cannot prepare for in advance.
This blog covers five things you should know before you are deposed. Having this information in advance will allow you to provide more accurate or complete answers, advancing your case. Alternatively, it will keep you from being surprised and reacting in frustration or anger in a way that may be used against you in your court case.
First, deposition questions are not permitted to be intentionally embarrassing or personal just to intimidate or upset you. We all have something we are not proud of or don’t share in a normal day with strangers, such as relative who is in prison for some horrific crime or who is a drug addict. Everyone has an “uncle Eddie” in the family tree. So you ask, “what is the limit”? The deposition questions have to be reasonably calculated to lead to admissible evidence for trial. This means you cannot ask about this relative in prison that you have not seen or heard from in years because it has no chance of leading to evidence related to your dispute and lawsuit with your neighbor over your property line. This information would have no ability to inform your case.
Second, it may seem odd, but attorneys may object to questions and state the reason in the deposition, even though you are required to still answer. This is because in your absence (such as death or that of who you are deposing, such as a witness), your deposition may be used at trial. If a deposition question asks what someone told you, this is hearsay, as you did not hear or personally witness the event. If the deposition transcript is read at trial, the hearsay objection could prevent your answer from being read into and recorded as evidence because it is hearsay. Without this objection, this hearsay may be used in the case and against you.
Third, technology makes most everything cheaper. Now it is commonplace for a court reporter taking a deposition to not only type the question and your answer, but also videotape the entire deposition. Thus, if your body language “says” you are lying, the video portion of this may be played to the judge or jury at trial for them to weigh whether you are being honest. Remember spoken words are but one of the forms of communication. We have all observed someone answer a question and their body “screams” they don’t believe what they are saying. Be prepared for this! Actions may speak louder than words. Don’t let this haunt you in the courtroom.
Fourth, it may seem strange, but you may be shown and asked about a number of documents. It allows you to authenticate a document of unknown origins, dates and times. Photographs and parts of texts and emails that are otherwise inadmissible may be authenticated for trial by your admission to their accuracy, dates, times and the like. Also, for documents you may not expect, it may elicit a range of responses that may help or hurt your case. However, if you think about your deposition in advance, you can probably anticipate these documents. The moral of the story is don’t, for example, deny an old OWI/DUI conviction because it probably will show up on a criminal history.
Fifth, in almost every case, particularly divorce, there is some secret a party does not think the other knows or so taboo it will not be asked. It will. The first time your attorney hears the question and how you are going to answer should not be in the deposition room. This limits the ability for him or her to ask clean up questions to put the answer into a proper context. Whether you smoke pot or watch porn, it will come up! You trust your attorney with your legal objective, let him or her know your secret in advance so he or she can ask you corresponding questions to put it into context. For example, if you admit you smoke pot, this can mean or infer a lot of things. It could mean you are a hard-core drug abuser to you smoked pot once during marriage. These have vastly different implications in a contested child custody case as an example.
Ultimately, the key to your deposition is the key to life: Be prepared. Be honest. Preparation for a deposition and working through the issues with your attorney with these considerations will allow you to give or take a deposition in your case in the way most meaningful to your legal goal. In other words, you should not just show up for your deposition but treat it as a serious part of your case. Failure to do so may wind up in whole or part of you “losing” your case. Dixon & Moseley, P.C. advocates are adept at preparing for and conducting depositions and have done so for many cases over a long period of time. We hope these tried and true tips help you. This blog post is written for general educational purposes only and is not a solicitation for legal services nor legal advice. It is an advertisement.