Legal Updates

What To Expect When You're Facing A Deposition

December 2018

It’s a harsh reality: sometimes employers and even individual employees get sued. And when workplace disputes turn into litigation, employees are often the first line of witnesses noticed for depositions.

Whether you are a high-ranking executive or manager or an entry-level worker, facing a deposition can be a nerve-wracking experience. A deposition puts the witness in the proverbial “hot seat,” where he or she must answer questions asked by a lawyer on the spot and under oath.

Overview

Despite what the movies might suggest about witness interrogation, depositions are usually not about proving your case on the record, or exclaiming at just the right moment, “You can’t handle the truth!” To the contrary, depositions are primarily about digging for facts, and a day of deposition testimony can often feel long and uneventful.

Nonetheless, depositions can be critically important to a case and should never be taken lightly. Imagine, for a moment, that an incident of alleged employee misconduct occurs while several co-workers are out for drinks after work. One of the employees files a lawsuit, and litigation commences. In a case like this, where there is often little or no documentary evidence, how do the parties investigate the facts to prove what happened that night? By talking to – and deposing – eyewitnesses.

Depositions not only offer a chance to uncover new facts about a case, but also present an important opportunity for a party to showcase to the other side the strength and credibility of its witnesses. A deposition can also present an opportunity for an opposing party to assess an unfriendly witness’s demeanor and attack his or her credibility before trial. Finally, depositions can allow parties to ask questions about alleged damages to better understand how much a case is worth.

What To Expect And How To Prepare

While not every answer provided in a deposition might come out as perfectly-crafted as a witness might like, the key rule for anyone about to be deposed is to tell the truth. Beyond that basic principle, however, knowing what to expect from a deposition, and properly preparing for it, can turn even an inexperienced or apprehensive witness into a confident and skilled deponent.

If you find yourself facing a deposition, here are a number of points to keep in mind:

When you are asked to give deposition testimony in a case, you’re usually served with a legal document (a deposition notice or subpoena) telling you where and when to appear. Failing to appear for your deposition can have serious consequences. Thus, if you cannot attend your deposition for whatever reason, make sure you promptly contact the attorney who noticed you as a witness and let him or her know. (Alternatively, if you are being deposed in a case in which your employer is a party, the employer’s attorney may be representing you for purposes of the deposition, in which case you can inform that attorney.)
Typically, depositions are held at the offices of one of the attorneys in a case, or occasionally in another location such as a hotel conference room. Your deposition will be attended by you (the witness), the attorneys in the case, and a court reporter. Depending on the nature of the case, your employer’s attorney may be representing you for purposes of the deposition. Alternatively, some witnesses choose to bring their own attorney to represent them at a deposition. Sometimes the parties in a case, or an insurance adjuster, will also attend the deposition.
If you are being represented by a lawyer at the deposition, take the opportunity to meet with that lawyer in advance to talk about the case and what you know about it, and to go through some practice questions and answers. You will feel much more confident and comfortable in the deposition if you take time to prepare for it.
Giving a deposition can turn into a long, sometimes tiresome day. You should expect to spend a full day giving your deposition, unless you are told otherwise. Thus, make sure you get a good night’s sleep the night before, and have something to eat before you begin.
To start the deposition, the court reporter will swear you in. After you are sworn in, the testimony you give throughout the day will be under oath.
The lawyer who noticed your deposition will go first in questioning you. As the witness, you should be mindful that it is important to let the lawyer finish his or her question before you respond. This is important not only for making sure you understand the question, but also for ensuring that the court reporter can accurately transcribe both the question and your answer.
The lawyers in the case may object and argue. Let them. If you have a lawyer with you who is representing you, your lawyer will tell you when you should not answer a question. Typically, this occurs when you have been asked a question that would require you to disclose attorney-client privileged communications in order to answer the question – in which case, you should decline to answer. Otherwise, you will be generally expected to answer all questions presented to you.
You will likely be asked about documents in your deposition. If you are presented with a document, be sure to read it fully, and make sure you understand and are comfortable with what the document says, before agreeing that you have seen it before, making a statement about what the document is, or answering questions about it.
Anytime you need it, ask to take a break. Depositions are not meant to be a race to the finish line. The day is often long, and without breaks, it is easy for a witness to become tired and worn down by questioning. Feel free to indicate that you need to stretch your legs, get a cup of coffee, or use the rest room.
You can also use a break to speak with your attorney, if you are being represented at the deposition. For instance, if you are unsure about the meaning or scope of any of the other lawyer’s questions to you, it may be helpful to talk with your attorney about that.
After the deposition, you will be given a transcript of your testimony. You should carefully read the transcript and correct anything that the court reporter may have spelled or transcribed incorrectly.

A Few “Dos And Don’ts” For Answering Deposition Questions

Do tell the truth. This is the number one rule for any deponent. Making a knowingly false or misleading statement can bring severe consequences.
Do pause and think before answering each question. Consider exactly what is being asked of you, and then provide that information, and only that information.
Don’t volunteer information or ramble on unnecessarily. Sometimes, silence makes a witness uncomfortable and prompts him or her to continue talking after answering the question. Don’t fall into this trap. State your answer, and then wait patiently for the next question.
Don’t answer questions that you don’t understand or know the answer to. If you don’t understand the question, ask the attorney to rephrase it. If you don’t know the answer, simply say “I don’t know.”
Do speak to your personal knowledge - that is, things you saw and heard firsthand. Do not state as fact things you learned of or overheard from others, but did not witness or experience personally.
Do be confident in your answers, but don’t say “always” or “never” unless the answer truly is “always” or “never.” Don’t exaggerate.
Don’t let the lawyer rattle you. Stay calm.
If your lawyer interjects “Objection” in response to a question, pause and do not say anything unless and until he or she instructs you to answer the question.
If you realize that you made a mistake in answering a question and need to correct your answer, don’t hesitate to say that. This is very common and nothing to be concerned about.

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Giving deposition testimony is rarely a pleasant experience. With careful preparation beforehand and close attention during the proceeding, however, it can be as comfortable and stress-free as possible.

If you need assistance in preparing for a deposition, or with any other aspect of litigation to which you or your employer are a party, please feel free to contact one of our experienced litigators.