PREPARING FOR A DEPOSITION
Though most lawsuits settle before trial, during litigation parties of the suit will more than likely be deposed before any settlement is reached. Depositions can make or break a lawsuit, and become the most important factor in settlement negotiations. The importance of deposition cannot be overstated, and this is particularly true for those bringing or defending lawsuits. Understanding and preparing for depositions is crucial.
First, depositions are part of the discovery process of litigation, in which parties and their attorneys gather all possible information relevant to the case. This comes after the initial pleadings (Complaint then Answer), and after the written part of discovery of interrogatories, requests to produce, and potentially request to admit. Depositions serve to gather oral information directly from the person or people bringing a lawsuit and the person or persons defending a lawsuit (depositions can also include witnesses and experts, but for this I am focused on the parties). Because depositions can be lengthy and involve multiple follow-up questions on cross-examination, the amount of information about the case is far beyond interrogatories and request to produce. It is also the chance to catch a party in a falsehood or contradiction which could then be used at trial.
Important to understand is that depositions are taken with the person being deposed under oath. The deposition is scheduled and conducted by the attorneys and without the court directly involved. A court reporter (who is credentialed to record everything spoken during deposition, but not a court official) will swear in the person being deposed and then record all questions and testimony. The testimony must be the truth, and the person being deposed is subject to perjury. Additionally, this testimony can be used during trial to show contradiction with testimony at trial and serves to "lock in" the testimony expected at trial. This helps drive settlement negotiations, and parties then know what will happen at trial.
Beyond gathering information for trial, attorneys are closely evaluating the person being deposed to determine how they will come across to a jury at trial. Does the person appear truthful, or do they exhibit signs of lying? Does the person become flustered, or angry, or confused during the deposition? Does the person come across as sympathetic in how they have been harmed? All these things can be gleaned by lawyers during deposition and help drive settlement negotiation due to the predictability of what will happen at trial.
With this understanding of the deposition, the person being deposed must prepare for a deposition. First, it is usually best to dress conservatively to help show the other attorneys the best initial appearance to the jury. Before the deposition even starts and during deposition, act cordial to the other attorneys but also understand they are the enemy. Keep any discussions with the other attorney to a minimum, as something said could assist the other side. It is important to stay calm, cool, and collected throughout the process, because the other attorney is attempting to find if he can cause the person being deposed to "lose it" in front of a jury.
In preparing to answer the questions during depositions, spend time thinking about what can be remembered in light of telling only the truth but only what is asked. The answers should be short and to the point and only answer the specific question. The other attorney must do his job of asking the "right" questions, and the person being deposed has no obligation to assist with further information that might help the other side. In an extreme point, if you are asked if you know the time during deposition the answer would be "yes, I know the time" instead of blurting out the time (Note: This specific question would not be asked, but it makes the point of forcing the other attorney to ask all the right questions and not help him). "I do not recall" is a perfectly acceptable answer, and prevents attempting to guess at something and face possible contradiction or even perjury. Never get "diarrhea of the mouth" in which lose words are then on record to be taken out of context during trial. When in doubt, keep quiet.
Finally, never allow yourself to be pushed around during deposition. You choose how long it takes to answer a question. You can also be asked to take a break at any time. During the deposition and on break, you cannot speak to your attorney about the deposition (you can speak after it is over). Additionally, you will hear your attorney make objections during the deposition even though you must answer the questions (in some extreme circumstances, like if you are asked about something said in the context of attorney/client privilege, your lawyer will direct you not to answer). These objections can later be used to keep out certain testimony at trial. Don't allow this to break the train of thought or the calm and collected manner during deposition. Never get overtly angry at the other attorney or show uncontrolled emotion. Again, this will be seen as the likelihood of turning off a jury during trial and harm settlement negotiations.
Deposition can seem intimidating, but should not. Understand what the other side is attempting the learn, and prepare accordingly and you will do fine.