By: John C. Whitbeck
John C. Whitbeck, Jr. is the founder of WhitbeckBennett. His practice focuses on family law, special education law, and mental health law. He regularly practices in several jurisdictions in the Northern Virginia area. He has also been certified as an expert witness in litigation. To learn more about John Whitbeck, click here.
Tips for Helping You through a Deposition
Are you a witness in an upcoming deposition? If so, you are probably nervous about it. That’s perfectly natural as depositions can be intimidating. Here are a few helpful tips for you to get you through the deposition.
What exactly is a deposition?
A deposition is a form of discovery in a civil case where the attorney for one of the parties asks you questions under oath. They can last anywhere from a few hours to multiple days and usually are done towards the end of the case when most of the other discovery is done. You are entitled to have a lawyer present whether you’re a party to the case or not. Deposition questions proceed sort of like they do in a trial but there’s no judge present to referee the attorneys and rule on objections. So basically, you will be answering all the questions asked of you unless there’s some reason your attorney instructs you not to.
Do I have to answer all the questions asked?
No. While deposition questions, for the most part, can be broad and intrusive, there are certain questions you can refuse to answer at the instruction of your attorney. Examples are 1) questions that may incriminate you; 2) questions that concern your communications with your attorney (attorney/client privilege); 3) questions concerning your case strategy (attorney work product); and 4) questions that are designed to harass, embarrass or oppress the witness. Otherwise, you will probably have to answer most other questions in the deposition unless your attorney advises you otherwise.
What do I need to do to prepare for a deposition?
As much as you can. First, it’s important to have an attorney with experience in taking and defending depositions. An experienced litigator gives you the best chance of minimizing any damage the other side may try to do to your testimony in a deposition. Second, you should meet with your attorney and discuss your testimony beforehand. If your attorney is experienced in depositions, he/she will be able to anticipate at least some of the topics you will be asked about and help you craft your answers. They can’t tell you what to say, but they can certainly help you prepare for your answers ahead of time. Third, you should review any other discovery both parties have provided to refresh your recollection as to what you have said and what your opponent has said. Oftentimes depositions are used to clarify other discovery already issued and answered in the case.
Can my performance in a deposition hurt my case?
Sometimes. Usually, that happens when you testify one way in a deposition and then say something contradictory at the court hearing. In such cases, the other side will use your deposition testimony to “impeach” you with a prior inconsistent statement. The best way to combat that is to just tell the truth and be as prepared as possible for both your deposition and your court hearing. Again, an experienced litigator can help you with this.
At WhitbeckBennett, we have several partners and associates with extensive litigation experience. If you need help with an upcoming deposition, give us a call to set up a consultation.