Advising the Virgin Deponent
Ira C. Wolpert, Esq.
 

          Many of my colleagues at the trial bar require that the client view videotape about the deposition process pro

          In a typical litigation situation, you have been notified by counsel for a party that the deposition of your client is required.  The date, time, and place have been agreed upon, and you have scheduled a meeting to prepare the client for the deposition.  The client informs you that he/she has never previously been deposed, and expresses some anxiety and trepidation about what will occur at the deposition and how he/she should act. 

          During my 41 years of litigation practice, I have taken and defended at least 500 depositions.  I have found that pre-deposition meetings with my clients take less time and are more productive if, prior to the meeting, the client is given a concise written outline summarizing the purposes of a deposition, the deposition process, the questions which may be asked, how the client should dress, act, respond, and not respond, and the like. 

          Many of my colleagues at the trial bar require that the client videotape about the deposition process produced by trial lawyers associations and similar professional groups. Those videotapes are helpful and instructive and usually well done.  My experience, however, has been that my clients prefer written rather than aural or video instruction because it can be read at the client's convenience, the client can make notes on the writing, and it can be read again after the client meeting and before the deposition is taken. 

          What follows is a memo that I send to my clients before the substantive pre-deposition meeting. It distills my deposition experience.  It is not intended to be comprehensive or complete.  It simply gives the client a "heads up" in a conversational presentation.  Feel free to modify it in any way you think suitable to your particular circumstances.  I welcome your comments and suggestions.
 

MEMORANDUM

 

To: (Client)

 

Date:

 

Re: Your Deposition

 

 

Your deposition has been scheduled for ____________, at __.m. at the offices of ________________, whose address is __________________.  You are to meet me on ________________, at __.m. at my office to discuss what will occur at the deposition.  This memorandum will give you the basics you need to know about the deposition process.  Please read it carefully before you come to our meeting.

 

I. INTRODUCTION

A deposition is sometimes called an examination before trial.  It means sworn testimony given other than in a courtroom in response to oral questions.  The proceedings are recorded by a court reporter and the record is then transcribed into a typewritten record.

 

A deposition serves three basic functions:

1.  To determine the facts as you know them.

2.  To "pin you down" and prevent you from testifying differently at trial.  If you do,

 you can be impeached by the testimony you have given at the deposition.

3.  To size you up as a witness.  Your testimony can be affected by your

 demeanor.  For example, if you are nervous, have annoying mannerisms, you have

 long pauses between the question and answer, or you are evasive in your answers,

 your testimony may not be believable.

I will be present at all times during the deposition.  I may object to a question, and if that happens listen carefully to the objection because it will alert you to the possibility that the question requires clarification or that you may not fully appreciate the import of the question. For example, if the question may contain two questions in one, I may object to the form of the question.  In rare instances, I may object and advise you that you have the right not to answer the question because it would intrude upon the attorney-client privilege or the answer would require you to divulge information that is proprietary or a trade secret.  In such circumstances you should refuse to answer the question, or you may want to take a break and consult with me. 

 

You may ask for a break in the proceedings at any time.  However, your ability to consult with me is limited because you are being examined as if you were on the witness stand in court.

 

You should dress appropriately for the deposition.  This means that you should wear whatever you normally wear to your work or, if you do not work, whatever you would wear to your church or house of worship.  But do not overdress or under dress.  You should be comfortable and natural.  Avoid looking sloppy. Appear well groomed. Do not wear distracting or flashy jewelry.

 

Come to the deposition on time, well rested and alert.

 

No one is permitted to smoke at the deposition.

 

The deposition is usually taken in a conference room in opposing counsel's office.  You will sit next to me, with opposing counsel facing you.  Other counsel and possibly parties to the case may be present.

 

You should not bring any papers with you to the deposition or take any notes during the deposition.

 

II. PREPARING FOR THE DEPOSITION
 

You need to spend some time to familiarize yourself with the facts of the case.  This means you need to review the pleadings with me.  I will tell you which are important and which documents have been produced by the parties.

 

I will tell you what positions the parties in the case have taken.  I may play the role of the opposing counsel, simulate opposing counsel's style and ability, and take you through a series of questions that may be asked of you at the deposition.

 

You will probably be asked if you reviewed anything in preparation for the deposition or spoke to anyone about your expected testimony.  You should admit that you met with me, but you should not disclose what was discussed or what I may have shown to you.  You should also admit that you reviewed documents and, if asked, what documents were reviewed.

 

III. QUESTIONS THAT ARE USUALLY ASKED

 

In most cases opposing counsel will ask preliminary questions to determine your demeanor, responsiveness and your speech patterns before embarking upon an examination of the issues in the case.  These prefatory questions may touch upon the following topics:

 

1.  If you have ever testified before, and if so, the details of the case, such as the name of the case, date and place and the nature of your testimony.

2.  Whether you have ever been a party to a case, or a witness, with details.

3.  Whether you have ever been charged or convicted of a crime, excluding traffic offenses, with details.

4.  Your present health, if you have any difficulty hearing or speaking, understanding the English language, or are on any medication which would affect your memory or ability to testify truthfully.

5.  Your name, address, social security number, age, marital status, number and age of children, and your spouse's name and age.  Where and with whom you have lived during the past years.

6.  Present and past employment, including dates, names and addresses of employers, duties, salary, reasons for leaving.

            7.  The extent of your education, beginning with high school.

8.  If you have ever served in the military, and if so, the dates of service, rank you achieved, and awards given to you and the type of discharge you were granted.

 

IV. HELPFUL HINTS

 

Here are few pointers to keep in mind when you testify (in no particular order of importance):

 

1.  Listen to the question and do not answer anything other than what was asked.  Do not volunteer.  For example, if you are asked what the weather was on a particular day, state the fact, but do not volunteer that the weather was different that any other day or how you felt about the weather.

2.  Wait for the question to be asked before you answer.  And think about the answer before you speak.

3.  Be as accurate as you can about time, dates, places, names and documents. Be careful if you are asked to estimate distances or the speed of a vehicle.  If you cannot testify with accuracy, you are permitted to state that without a particular document or other aid you cannot answer the question.  In other words, do not guess at an answer!

4.  If you are not sure how to answer a question and need time to think, ask counsel to clarify the question or repeat the question.  Counsel may ask a different question or, if the same question is repeated, you will have time to collect your thoughts.  Also, if you do not understand a question do not hesitate to say so.

5.  You do not have to answer every question if you do not know the answer.  You can say you do not know without concern that you may be perceived as evasive or uninformed.  You can say you don't remember if in fact that is the situation.

6.  Do not anticipate where opposing counsel is going with his or her questions, or think that you are smarter than him or her and can outwit counsel.

7.  You can always qualify an answer if you think your answer may be misleading or incomplete.  For example, you can answer yes or no, followed by a "but" or "I need to explain my answer".  Also, be aware that sometimes counsel will ask a question that suggests the answer: "How close to the other car were you when you first applied your brakes?"
8.  Do not be intimidated by the demeanor or voice of opposing counsel.

9.  Keep in mind that you do not have to convince opposing counsel of the merits of your case.  He or she is not the finder of the facts.

10. Do not become so relaxed that you become conversational.  That may cause you to volunteer information which otherwise may not be asked of you or you may be led into a series of questions in which you and opposing counsel come into affable agreement.

11. If you mention a name or place which is difficult to understand, the court reporter may ask you to spell it out.

12. I may cross-examine you when opposing counsel completes direct examination to clarify a point or make a point.  Do not be surprised if no cross-examination occurs.  I may be satisfied with your answers.
13. Finally, at the conclusion of the deposition you may be asked if you want to waive your signature to the transcript as typed by the court reporter. I will usually advise you to waive your signature because there is justifiable reliance that the court reporter is experienced and reliable and will transcribe the testimony accurately.  Furthermore, if you choose to read the deposition, you will not be able to change an answer.  You can only make minor corrections, such as the spelling of a name. Even your grammatical errors cannot be changed.  I will also advise the court reporter if I want a copy of the deposition and I will inform you of the cost.  In most cases, a deposition is transcribed in ten days to two weeks from the time it is concluded.

 

VI. CONCLUSION

If you are prepared, comfortable with the facts and tell the truth, the experience of a deposition is not to be feared. 

 

Bring this memorandum with you to our meeting.  Review it after the meeting and again before you testify.

 

                                                         Sincerely,

 

                                                         Attorney, Esq. 

Ira C. Wolpert, Esq. practice in Bethesda, Maryland and specializes in commercial and complex business litigation.


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