Depo Tips

Last edited 145 days ago by Ted Broomfield

Summary. This blog posted targeted to an audience of people who are being deposed for the first time seeks to provide an overview of the deposition process and tips to help.

Deposition may be the single most fearful experience of a party to a litigation as well as the most important thing that a party can do to influence the outcome of the case.

This blog explains that a deposition is an oral question and answer session that is reported by a certified court reporter who creates a verbatim written transcript that any person can later edit within 30 days. The keys to giving an effective deposition are to answer the questions asked with specific facts that support your claims or defenses.

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Five Tips for an Effective Deposition

Five Tips for an Effective Deposition

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What is a deposition?

A Deposition is one of the tools of discovery that is used during the discovery phase of litigation. It is an oral question and answer that where the opposing counsel asks questions and one person is required to answer those questions. The deposition is testimony, meaning that it can be used as evidence in the case, and it is given under oath to tell the truth, subject to the penalty of perjury. The deposition is reported, by a certified court reporter, who later provides a verbatim written transcript of what was said.

Where can the deposition take place?

I never gave this much thought, but, many of my clients have asked me if the opposing counsel has the right to conduct a deposition at the opposing counsel’s office. The answer is yes. The applicable rule,

Code of Civil Procedure section 2025.250⁠

states clearly that the location shall be at a place selected by the person who has noticed, meaning demanded, the deposition.

Do I have to answer certain questions?

Many deponents ask, including right at the deposition, do I have to answer that question. Well, the answer is, it depends. And it depends on what a court orders after the deposition is over. The general rule is that, unless an attorney instructs a deponent not to answer a question, the attorney who is taking the deposition, meaning asking the questions, is entitled to an answer. Refusal to answer can result in sanctions.

Classic Mistakes

It is very understandable why deponents make mistakes. Most people only do a deposition once in a while. Meanwhile, the attorney who is “taking the deposition,” meaning asking the questions has likely taken dozens, if not hundreds of depositions. Deponents tend to be understandably very nervous.

The following are “classic” mistakes that I have seen in depositions that with some advance knowledge can be avoided.

Not knowing your claims. I have repeatedly been at depositions where the plaintiff was seeking money for emotional distress. The attorney taking the deposition always asks, did you suffer emotional distress? A shockingly high percentage of deponents answer, “no,” basically making emotional distress damages much more difficult to earn.

Testifying Feelings rather that Perceptions. Most deposition questions revolve around simple fact gathering by the opposition. The opposing counsel wants to understand the context of the dispute, the when, where, what, and who of each specific event or condition and the extent of the impact. Most litigants want to answer about how bad they feel about the events asked for. This is a mistake. Proving claims or defenses is about facts, not feelings. The better practice is answering the questions factually, as described below.

Not answering the question asked. This is among the biggest mistakes a deponent can make. In many ways deposition is very different that a normal conversation. In normal conversation, it has become completely acceptable to pivot the conversation, by ignoring the question, and responding to a question by providing completely unrelated information. Except for certain circumstances, this is a big mistake at deposition. Just because you can’t provide specifics, does not mean you can’t give a good answer.

If the question asks “when,” give a specific date, month & year, season & year, first half, second half of year, or time frame relative to an event.

For example, question - when did you become aware of the first problem at your house? Answer - I can’t give you a date, but, it was within a few days after I moved in.

If the question asks for “who,” give a name, a title or job function, a description of the person.

For example, question - who was the first person that you spoke with when you arrived at the hospital? Answer - I can’t give you a name, but, the first person I remember speaking with was a hospital employee who was wearing grey scrubs and asked me how I was feeling.

Being evasive. It is definitely OK to not know the answer to a question, especially if you are asked about something that happened a long time ago. I don’t know, or I don’t remember can be perfectly fine answers. However, if you don’t know, or don’t remember, you really cannot dispute someone else’s memory or version of events, can you? Furthermore, if you answer don’t know/don’t remember excessively, your credibility as to your overall claims may be damaged.

Overreaching. Overreaching means exaggerating the impact of conduct, circumstances or behavior. Everyone tends to experience their own feelings more strongly than others. Exaggerating your feelings in response to circumstances does not help your case. If you got a sprained ankle from a car accident that hurt and prevented you from enjoying physical activity for a month certainly say those words. However, if that injury later healed, don’t exaggerate the negative impact of the injury.

Missing your opportunity to prove your damages. On the other hand, I have seen so many deponents miss their chance when it is the right opportunity to describe in detail how the events hurt them. Questions that amount to “how did you feel,” “what harm did you experience,” and “how did this negatively impact your life,” call for the deponent to state with specific facts exactly the harm they suffered.

No Coaching, but listen to your attorney

Clients frequently want their attorney to testify for them at deposition. It is strictly prohibited for an attorney to offer testimony. However, you should carefully listen to your attorney.

If your attorney says, you can answer if you understand the question, maybe you did not understand the question and should say so.

If your attorney says, you can answer if you remember, maybe you did not remember.

If your attorney says to the opposing party, I’d represent some specific fact, it’s probably a fact that you should testify about, if you have specific knowledge.

What is a deposition?

Where can the deposition take place?

Do I have to answer certain questions?

Classic Mistakes

No Coaching, but listen to your attorney

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