When you are a party in civil litigation (you are suing or being sued), it is common to receive a subpoena for your deposition. This means your opponent is on a “fishing expedition” to find out everything you know about the issues involved in the case. This process is done before a court reporter and you are asked all sorts of questions. Depositions are different than testimony at trial since the opposing counsel can ask a much broader scope of questions at a deposition if they might lead to admissible evidence.1 Keep in mind that your deposition testimony can significantly impact the outcome of your case, as it can be used against you at trial or to obtain other evidence. While you must answer the questions presented truthfully, many deponents make simple mistakes that hurt their case that are avoidable; if you were careful, you can still provide answers as required by deposition rules (and the fact you are testifying under penalty of perjury and may be prosecuted criminally if you lie under oath). This blog covers five key and avoidable mistakes deponents routinely make, which if you avoid will help your legal position within the law and your case. Don’t make them!
Perhaps the most common mistake deponents make (because they do not want to be deposed in the first place) is rushing to answer to get the question “done” without thinking about or fully understanding the question. If you do not understand the question, say so. Your attorney may also object to the form of the question in this case as well. Oftentimes rushing to answer leads to an answer to a question not being asked or an impartial answer to the question that really needs to be complete or it hurts your case. If this occurs, then you can be asked at trial why you are now answering differently and lose your credibility. If you answer the question in a non-responsive way (with a different answer to a different question not before you), you might inadvertently give up information harmful to your case without having to do so. The takeaway is understand the question and answer, no more or no less.
A significant problem that reflects the personality of some deponents is when they love to talk. In this case, the deponent just answers the simple question and everything that “pops” into his or her mind at the time. In most cases, the opposing counsel who is deposing you for the benefit of the opposing party’s case, wants you to be comfortable and do so. This is good lawyering but “terrible” for a deponent. When you answer a question with a long narrative, you give the examiner more information to build your opponent’s case. Be alert and resist human nature to explain everything and tell a story. Again, just answer the question.
Failing to answer a question is also common and a sure way to highlight weakness in your case or a sensitive spot for you that will likely harm your case and trial. So even if you do not like the question, respond directly and precisely to it. If you avoid answering a question, you will lose credibility. You can highlight for the other side that this may be significant for their case because do not want to answer. Just as you do not want to overshare, you do not want to appear as if you have something to hide. Being non-responsive can also lead to a longer deposition and possibly court involvement if the examiner believes you are intentionally avoiding a question. Finally, some questions lead deponents to not want to answer because a “yes” or “no” answer is required, as the question, as framed, is incomplete. Your attorney can ask you clarification questions to clear this up. If, after talking with your attorney in advance, you know you have this problematic part of your case, you can work through your answer, so it is responsive and alerts your counsel to the need for “clean up” questions if your answer in deposition is incomplete.
Depositions are rarely pleasant for the deponent and make him or her feel validated in their lawsuit. Most of the time, deponents feel “victimized”. You must consider everything you say has the potential to come back to you later. If an answer gets you angry, you can be sure that this will be asked in court to show you are irrational et cetera. That is why it is critical to set aside your emotions and answer the examiner intelligently and without emotion. State the facts, no matter how emotional you may feel about the case. If you think you are about to get emotional, ask for a break. Judges and juries weight the credibility of your testimony not only by what you say but what you do and how you act. If you can “get worked up” in a deposition, this means you will at trial. How will this play out to the decision-maker (the judge or jury)?
The last and perhaps most problematic situation that arises in depositions is where the deponent does not know the answer to the question. If you do not know the answer, just say “I don’t know” or “I don’t remember”. Do not try to recreate facts or events if you are not certain as to the accuracy as a way to prove what you believe is the answer. Equally, answering “I don’t know” or “I don’t remember” may be reflective of an evasive answer. If asked in court and you do know or should have known the answer, this may lead the decision-maker to believe you are not credible and harm your case.
Ultimately, dispositions are a powerful tool to gather information in a case to prepare for or use at trial. These are some key mistakes deponents make repeatedly. Obviously, there may times when these rules do not apply, and your counsel may advise you to answer or act otherwise, such as refusing to answer and asserting your Fifth Amendment Privilege because your testimony could have criminal implications. We hope this blog post provides you with some general background about the deposition process in Indiana. This blog is written for educational purposes only to assist readers with being a more informed legal consumer. Dixon & Moseley, P.C. attorneys practice throughout the State of Indiana and handle a wide array of civil and criminal cases. Even if you are not a party, it is best to seek the advice of counsel if you are required to be deposed. This blog post is written by Dixon & Moseley, P.C. advocates and is not intended as specific legal advice or a solicitation for services. It is an advertisement.