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What Clients Should Know When Preparing for a Deposition

A deposition is a question-and-answer session with the parties to the lawsuit and the other side’s attorney. Typically, a lawyer will ask the same or similar questions of a witness during the deposition as he or she will ask during the trial of the case. The purpose is to determine what type of witness the person would be if the matter were to proceed to trial. In doing this, lawyers are looking at the credibility of a witness if his or her story differs between the deposition and trial.

Deposition preparation and evaluation of the deponent is critically important in cases. In order to adequately obtain information that is being solicited from the witness, an attorney always must prepare for the deponent. In a deposition, lawyers meet with parties in a case, as well as experts and other witnesses, to ask questions before trial and take statements under oath. This formal questioning is part of the discovery phase, which lawyers use to gather facts to prepare their cases. While depositions are a routine part of litigation, understanding their purpose and how to prepare for them is crucial.

Additionally, lawyers use depositions to determine the strength of their case. Depositions are one of the few times that an attorney gets to evaluate witnesses and use that assessment to determine whether settlement of the case is an option, or if the matter should continue through other motions and trial proceedings.

If you are going into a deposition, here are things to keep in mind:

  1. Dress appropriately. Impressions matter, and lawyers use depositions to determine how well a potential witness will present in front of a jury.
  2. Provide honest, accurate and direct answers. Answer the question that is being asked of you, and do not give the impression that you are being evasive. Always make eye contact when answering the questions, and remember the examiner is looking to see how trustworthy and truthful you are.
  3. Your answer should be brief. The more you talk, the more you open the door to new questions. After the question is asked, take a moment to assess the question that is asked of you. Pause, and then provide an answer.
  4. Do not volunteer information for a question that is not being asked. Answer the question as it is posed to you. However, you should not feel constrained to give only a “yes” or “no” answer. Provide further explanation as concisely as possible.
  5. There is no reason to be nervous if you are telling the truth. Most people have not been part of a deposition, so feeling anxious is normal. It is important to stick to the facts because the consistency of your story will be an important factor in determining the outcome of the case.
  6. Don't be afraid to say you do not recall something. A lot of litigation happens years after the incident. If you do not remember a fact, do not force yourself to give a response in which you’re not completely confident.
  7. Ask for clarification, if needed. You will not get an opportunity later to correct what you say in a deposition if you misunderstand the question.
  8. Always ask to see what the examiner is referring to when he or she refers to records or reports. Lawyers may ask about medical records, accident reports or witnesses’ written statements. The excerpt that is being asked about may have a sentence before or after that adds important context and so it is important to review the document to which the examiner is referring.
  9. There is no judge, but lawyers may still object. Under South Carolina law, attorneys may object only to the form of the question. A lawyer must object at the deposition to preserve the right to object later at trial. Lawyers also may object based on attorney-client privilege if the information was from a private discussion between the lawyer and client.
  10. If you need to take a break, ask for a break. Depositions of parties involved in a typical personal injury case can normally last between 45 minutes to an hour and a half. However, the length depends on the type of case and the deponent involved. If you are feeling fatigued, need a drink of water or need to go to the restroom simply ask the examiner.

Preparation is the key to a successful deposition, and a successful deposition can play a big part in advancing the interests of a plaintiff or defendant. Depositions can lead to the early resolution of a matter in litigation.

In a deposition, your legal counsel should be skilled at listening as well as questioning to react to unexpected information that may emerge. Cases frequently are won out of court, and legal counsel who are well prepared for depositions will have an advantage in achieving a favorable outcome for their client.

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