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Preparing For Your Deposition
There
are two basic reasons why the opposing attorney wants to take
your deposition. First, that lawyer is trying to discover information
about you personally, your background, your education and work
history. He is also trying to discover what information you
have regarding the claim, including the facts and witnesses
supporting the case.
Second, the opposing attorney is trying to pin you down or
lock you in to your story or testimony. If later at trial,
you give an answer that is different or inconsistent with
your sworn testimony, then that attorney will discredit or
impeach you with your prior testimony. The theory goes that
if the judge or jury does not think you are credible or mistaken
on some points, then you are not reliable or honest on the
key points supporting the claim.
The attorney and witness should approach the preparation
for the deposition with these motives in mind. The first rule
of thumb is to tell the truth. No matter how bad the truth
may seem, it is always easier to explain a truthful transgression
than trying to explain why the witness was not honest. Everyone
makes mistakes. Juries are more forgiving if the witness is
forthcoming and honest even on difficult subjects. Also, your
attorney can prepare more effectively for truthful testimony
than to be caught off guard at trial with the exposure of
an untruth.
Most witnesses are truthful in their testimony. However,
smart lawyers can trip them up at trial when the witness attempts
to remember facts on which they are not clear or not certain.
Remembering times, distance and space are prime examples of
areas where the witness can get in trouble. If you are not
certain how fast you were going, or how many car lengths away
you were, then qualify your answer by saying you are not sure,
or telling the lawyer not to hold you to your recollection.
I do not know or I cannot remember are acceptable answers
in a deposition.
The next rule in any deposition is to assume that the other
lawyer either already knows the answer to the question he
is posing to you, or he will get that answer before trial.
Thus, if he asks you to detail all of your past medical history,
be careful to qualify your answer or tell him that this is
all you remember at this time. If you forget an instance where
you received medical treatment in the past, the opposing lawyer
will know it and bring it out at trial in an attempt to discredit
you.
Another good tip to consider during your deposition is to
listen carefully to the question posed by the other attorney
and answer only that question. Often, witnesses will try to
anticipate the next question and provide a response that they
think the lawyer is asking. Long and detailed answers not
only make the deposition last longer, but also make it easier
on the opposing attorney to discover information which he
was not going to ask you.
If a question needs an answer that requires explanation,
then explain your answer. However, if the question can be
responded to simply with a yes or no, then answer it in that
fashion. When responding to a question that requires your
best estimate, then make it clear in your answer by saying
" I think it was about 3 feet." Thus, at trial,
you will have some room for error if additional facts are
remembered.
Finally, remember that questions are allowed in depositions
that may not be allowed at trial. Thus, do not be offended
or surprised about personally probing questions. They may
not necessarily be asked at trial. Objections at trial are
also not allowed during most depositions. Generally, only
objections to the form of the question and the responsiveness
of the answer are allowed during the deposition. Questions
asking for hearsay or which are leading are acceptable in
a deposition even though they are not allowed at trial.
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