What is a Deposition and How Can I Testify Successfully

A deposition is sometimes called an “examination before trial”. The parties to litigation are given the opportunity to question the opposing party, under oath, before a court reporter. After the deposition, the questions and answers are transcribed into a book also called a “transcript.”

What Are Depositions For?

Depositions are generally taken for three reasons:

  1. It is a discovery tool used by attorneys to obtain information about you, how the accident occurred and your injuries;
  2. It is used to “lock your story in” so you cannot change it at the time of trial and surprise your adversary;
  3. It is used by counsel to evaluate your credibility, believability and likability.

If a jury likes you then it will tend to do good things for you (hold in your favor, award you high damages, etc.) The sworn testimony given at deposition is given the same weight and credence as if it was given in the courtroom before the judge and jury, so you can see why a deposition is so important. The deposition can make or break your case. If you give a strong deposition it will help your attorney posture your case for settlement. If you give a poor performance at deposition, settlement becomes more difficult. More significantly, you may open yourself to having your case dismissed before trial or make it very difficult to give convincing testimony at trial.

Preparing for a Deposition

The key to giving strong deposition testimony is preparation. Your attorney should spend a significant amount of time with you before you submit to questioning by adverse counsel. Your attorney should first review with you the basic guidelines for how to conduct yourself and how to answer the questions. Your attorney should then review with you the types of questions to be asked and help refresh your memory of the specific facts of your case.

Tips for a Successful Testimony

The basic guidelines for most deposition testimony is as follows:

  1. The less you say at deposition the better. No, you are not trying to hide anything. You must remember that a deposition is not the time for you to “tell your story”. It is a time to answer very specific questions. You must remember how a deposition will be used at trial. When you testify again at trial (usually over a year later) you will convey the same story but will want to tell it with full detail and flourish. However, everything you say at trial must conform to what you said earlier at your deposition. If there is a conflict in your testimony you will be cross examined on the differences and made to look like a liar or at the very least as someone who is not sure what the proper answer should be. As human beings, we rarely tell the same story twice using the same words. Lawyers work with words and will emphasize the differences in your testimony. Logic, then dictates that the fewer words you have on paper, the easier it will be for you to testify in full detail without contradicting your former testimony.
  2. If you can answer the questions with a “yes” or a “no” – do so.
  3. If you need a brief explanation give one- but make it one, short, non- run-on sentence.
  4. If the lawyer wants more information, let him ask for it.
  5. The more you say, the more questions will be asked. Giving long winded answers is like adding fuel to the fire. You are just giving the attorney more to think about and more explanations to ask for.
  6. If the lawyer asks for one piece of information, give him one piece of information. If he or she asks you what color shirt you are wearing tell them the color not where and when you bought the shirt and how much it cost.
  7. If the lawyer asks for more than one piece of information in one question, your lawyer should object to the question.
  8. If your lawyer objects to a question, do not answer that question until your attorney instructs you to do so.
  9. If you do not understand defense counsel’s question, say so and he or she will rephrase the question. Never guess at what a questions means.
  10. Never guess at the answer to a question. If you are unsure of the answer, say so.
  11. If you do not remember the answer, say “I do not remember.”
  12. If you do not know the answer to a question, say “I do not know.
  13. Understand the difference between “I do not remember” and “I do not know.” If you never had the information in your brain – you do not know. There is nothing that can be done to bring that memory back because you never had the knowledge. If you used to have the knowledge but have since forgotten, then you do not remember. The difference is you can have your memory refreshed (you can be reminded) of the answer that you used to know but have forgotten.
  14. Be polite and don’t argue with the attorney. It is your job to answer questions. It is your lawyer’s job to argue with his adversary.
  15. Remember a court reporter is typing everything you say and only what you say, so you must speak your answers. Do not just nod your head or make hand gestures. Do not say “uh-huh” or “uh-huh” since there is no way to reflect the sound of your voice.
  16. Let the lawyer finish asking the question before you start to answer because the stenographer can only type once voice at a time.
  17. Finally, do not think out loud. Take your time. Think to yourself without speaking. When you are ready speak your short, concise answer.

Importance of the Deposition for Your Personal Injury Case

The successful prosecution of a personal injury lawsuit requires preparation and creative and aggressive planning at every stage. The deposition is one of the most important if not the most important pre-trial stage of your case. Your attorney must diligently develop your file long before the deposition so he or she can properly prepare you to give truthful and concise testimony. If you have any questions or concerns about your New York personal injury case, contact The Noll Law Firm, P.C. at (516) 307-1199 or at [email protected].

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