Whether you find yourself pursuing a grievance in the judicial system or defending one, odds are you will become familiar with the deposition process. Either side in a lawsuit may take the deposition of the opposing side, as well as third parties who have some relevant connection to the litigation.
What Is A Deposition?
Simply put, a deposition is the process of asking face to face questions to elicit answers that are provided under oath. Typically, the deponent (the one answering the questions) is accompanied by his attorney to an office where the opposing attorney will be present with a court reporter. A representative of the opposing party is permitted to attend and observe also. Sometimes depositions are videotaped.
Often depositions simply confirm a parties’ position on the facts, but occasionally a deposition will generate incriminating testimony. A recent deposition of an executive for a principal unveiled these critical admissions:
Question: So, in order to justify your position, basically, you are having to rewrite the contract after termination?
Answer: That’s the problem. It can’t be rewritten.
Question: You would like to pay him on what you should have done back in 2005. He wants to be paid according to the contract as it exists today, correct?
Question: Okay, and so you are willing on behalf of [the principal] to live up to that fairness?
Answer: I can’t say that, because we have two different meanings of what the contract is. You are going wording wise, saying this is what the contract reads and, you know, there is no fairness in there for [the principal].
Question: So, you think probably they owed [the sales representative] commissions for December 2014, and each month of 2015 to date?
Question: Okay, you are just withholding it or the company is withholding it?
Knowing this testimony could be used to cross-examine the witness at trial, the case settled a short time later.
The Deposition Process
The process begins with the court reporter putting the deponent under oath to tell the truth. This is the same oath that is administered in a court of law and failing to tell the truth is perjurious. The court reporter will stenographically record every word that is said at the deposition and at a later date will provide a written transcript to the deponent for review. The deponent should carefully read the transcript making sure that the questions and responses were recorded correctly.
If the deponent realizes that he answered a question incorrectly, he may–and should!–correct the transcript so that the answers are correct to the best of his knowledge. A caveat here: changes made to the transcript can be commented on by opposing counsel at a subsequent trial or arbitration. For example, if the deponent stated during his deposition that the traffic light was green, but, after reading the transcript of the deposition changes the light’s color to red, opposing counsel could point out that the deponent changed his response, and therefore his recollection of events should not be trusted. It is therefore imperative that the deponent give his best testimony on the day of the deposition.
The court reporter does not have the ability to transcribe shoulder shrugs, head nods, or grunts. All persons speaking should enunciate their words and make sure they are communicating verbally and not through body language. It goes without saying that the court reporter cannot record two persons at once, so the persons speaking need to be careful not to speak over one another.
It is imperative that the deponent understand the question being asked. If he provides an answer to a question it is presumed that he understood it. If the question is not understood, a request for clarification is appropriate. The deponent should limit his response to the question being asked: “yes” or “no” questions should be answered with a simple “yes” or “no,” with a follow up question to be anticipated. Long narratives in response to a question are rarely helpful and can unduly drag out the length of a deposition.
Most people do not have perfect memories and “I don’t know” is a perfectly acceptable response to a question, if it is truthful. Speculative responses are neither helpful nor wanted; however, best estimates should be given when appropriate. The difference between a guess and an estimate is often illustrated as follows: the deponent could likely provide a reasonable estimate of the length and width of the table at which the deposition is taking place because the deponent is there to observe it, but to opine as to the size of the asking attorney’s dining room table in his home would be pure speculation since the deponent would have no basis for determining its size. In summary, estimates: good; guesses: bad.
The deponent will likely be asked about, and should willingly volunteer, any basis for his perceived failure to provide his best testimony such as lack of sleep, or imbibing alcohol or taking medication in the previous 24 hours. A deposition is not an endurance event and appropriate break times should be requested and accommodated. The length of a deposition can vary from less than an hour to multiple days, depending on the facts of the case and the jurisdiction of the lawsuit. Some states (and the federal courts) have limits on the length of depositions.
The deposition process is a discovery tool that is available to all sides in a lawsuit. It is a method for getting direct answers to direct questions and pins a party down to a certain set of facts. Anybody finding himself in litigation should become familiar with the deposition’s purpose and process.