A deposition is simply a sworn statement which is taken in the presence of a Court Reporter. Under the Missouri Rules of Civil Procedure, a party to a lawsuit may take the opposing party's deposition. Therefore, this is an opportunity for the lawyer representing the opposing party to ask you certain questions which must be answered under oath.
In addition to me and you, the attorney who represents our opponent will be present and it is permissible for our opponent to be personally present at the time that your deposition is taken. Naturally, there will be a Court Reporter. The questions which are asked and answered will be taken down and later transcribed into written form.
Understanding the deposition process is crucial for anyone involved in medical malpractice litigation, personal injury cases, or other civil lawsuits. Our experienced attorneys will thoroughly prepare you for this important step in your case.
THE PURPOSES
There are three main purposes to a deposition:
YOUR STORY IS TOLD
A deposition is a discovery procedure which will assist the other side in determining what your testimony will be at the time of trial. Unlike the television dramas, there are few, if any, real surprises during the trial of a lawsuit. The lawyer who is truly surprised is probably a lawyer who has failed to prepare this case.
YOU ARE COMMITTED TO A STORY
The second purpose of a deposition is to commit you to a definite set of facts concerning the lawsuit in question. In the event that you would testify to a different set of facts at trial, the opposing party may use your deposition to impeach your testimony. "Impeach" simply means that the lawyer representing your opponent would attempt to make you look less believable in the eyes of a jury.
Certainly, if a person gives two different accounts concerning a situation, then a juror will think that either the person testifying has an extremely poor memory or the testimony is simply being made-up. In either of those two events, your case would be seriously affected.
YOU AND YOUR STORY ARE EVALUATED
Finally, your deposition may be used as an effective tool to assist in the settlement of this case. The other side will have an opportunity to evaluate not only your testimony but your effectiveness as a witness. If they conclude that our testimony is believable and that you will make a good witness, then the possibilities of settling your case will be greatly increased.
Key Takeaway
If you will remember that your deposition will be used for purposes of discovery; to commit you to a certain set of facts; and as a tool to assist in settlement; then you will be able to understand the rules that are set forth below which will assist you in effectively participating at your deposition.
THE RULES
The following rules have been designed by me and are by no means an exclusive list of all of the rules that should be followed by you during your deposition. However, you should use these rules to assist you in thinking about your testimony. By no means should you attempt to memorize these rules. A basic familiarity will be sufficient for our purposes.
ANSWER VERBALLY
You must answer your questions verbally. During a normal conversation, we many times nod or shake your head, but since the questions and answers are being taken down so that they may be later transcribed, it is necessary to give a verbal response because it is difficult for the Court Reporter to indicate what gestures you are making at the time that you answer the question.
LISTEN
Listen closely to each question. A basic problem of communication is that we fail to understand what the other person is saying. Many times we will begin to give our answer before the question has even ended. In other words, we are simply guessing at what the question may be. A deposition is not the time to guess at questions. Therefore, listen to each question carefully and wait until the question is finished before you begin to give your answer.
UNDERSTAND
Make sure that you understand the question. If you do not understand a word that is used, a phrase that is used or the entire question, then you should simply tell the attorney that you do not understand the question. He is then required to rephrase the question or explain it so that you understand it. Do not answer a question that you do not understand.
THINK
After you have listened closely to each question and you have made sure that you understand it, think momentarily about your answer. That will give you an opportunity to organize your thoughts. Do not take a lengthy period of time. A second may be long enough to think about your answer depending upon the length and complexity of the question.
NO GUESSING
Do not guess in response to a question. There are many problems with guessing, and you are not required to guess at an answer during your deposition. One problem is that it is difficult to guess the same way two separate times. Therefore, if you guess one way during your deposition, and then guess another way during trial, your testimony will be less believable. Another problem is that you may simply make a bad guess which would hurt your case.
Important:
You may give an estimate or judgment if you have one. However, by all means, do not guess as to speed, times and distances, and for that reason, you should not guess unless you are sure of your answer. If you do not know the answer to a question, simply state that you do not know. If you do not remember the answer to a question, then simply state that you do not remember. Those two responses will never get you into any problems.
Later, if you do know or you do remember, that can simply be explained by the fact that you have spent a considerable period of time thinking about the question and you have arrived at a response. Again, do not guess.
BE BRIEF
Answer the question briefly. If it can be answered, "Yes" or "No", then simply answer it "Yes" or "No". Otherwise, give a short answer. Remember this is a discovery deposition. Therefore, we are required to answer the questions that are asked, but we are not required to tell everything that we know. For that reason, do not volunteer information that is not requested. You will have an opportunity to tell your complete story at the time of the trial.
DON'T ARGUE
Do not argue with the other lawyer. I can guarantee you that you will not convince the other lawyer of anything. He represents your opponent. It is important for you to be nice, polite and courteous, and in that way, you will help make your deposition an effective tool of settlement.
MAKE CORRECTION, IF NECESSARY
If during the course of your deposition, you realize that you have made a mistake or you wish to change or modify an answer that you have given during the deposition, then simply tell the other lawyer that you want to back up and make a correction. It makes no difference that you are giving this explanation out of order. It is important that you make such a correction during the deposition rather than at some time after the deposition has been completed. Again, if you want to change, modify or correct an answer, then do it during the deposition.
BE CAREFUL
Beware of all phrases such as "Is that all?"; "Have you told me everything?"; "Is there anything else?". These phrases and others like them will be used to limit you in your answer. During this deposition, you are simply testifying to the best of your memory. Therefore, whenever you hear a phrase like the ones that I have listed for you, you may want to state that the answer you have given is to the best of your memory.
LISTEN TO ME
Listen to my objections. The objections that I make during the course of the deposition are generally designed to be ruled on by the Judge at the time of trial. However, you should listen to my objections because it will help you understand the issues of the case.
ADDITIONAL IMPORTANT INFORMATION
What to Expect During the Process
Note-Taking: I may or may not take extensive notes during the deposition. If I do not take notes that does not mean that I believe that the information is unimportant. I will be getting a copy of the deposition and it is not always necessary to take notes since I will have a transcript of exactly what is said.
Questions from Your Attorney: I will probably not ask any questions when it is my turn. If I do ask any questions it will only be to clarify some points made during the deposition. The reason that I may not ask any questions is that we will have an opportunity to present our view of the case at trial.
Review Opportunity: You will have the opportunity to review the transcript of your testimony to make sure it was accurately transcribed and to make any corrections that need to be made.
Preparation is Key
This information is provided to assist you. Naturally, if you have any questions about anything that is contained in these instructions, you should make a notation so that we may discuss them while we are preparing for your deposition.
Our attorneys have extensive experience preparing clients for depositions in medical malpractice cases, nursing home abuse cases, and other complex litigation matters.
Remember:
A deposition is a critical part of your case, but with proper preparation and by following these guidelines, you can help ensure the best possible outcome. Your honesty, preparation, and adherence to these rules will contribute significantly to the success of your case.
If you have questions about your upcoming deposition or need legal representation, contact our experienced legal team for guidance and support.
