As any experienced trial lawyer will tell you, a difficult case can be greatly enhanced by a good deposition performance. Similarly, a slam-dunk case can be jeopardized by a poor one. In short, the time and effort you devote to preparing for your deposition are valuable investments in pursuing or defending a lawsuit.
1. Notify Your Attorney Immediately Upon Receipt of Notice of Your Deposition.
In order to be deposed, you must be noticed of the deposition. California law provides strict requirements that must be complied with in order for an individual to be properly served with notice of the deposition. Items required to be present in the Notice of Deposition include:
- location (Code Civ. Proc § 2025.220(a)(1));
- date and time (Code Civ. Proc § 2025.220(a)(2));
- name of deponent;
- address and telephone number of non-party deponent;
- (if deponent is not a person) Matters upon which the deposition is requested describe with reasonable particularity (Code Civ. Proc. § 2025.230);
- materials to be produced by deponent at deposition (Code Civ. Proc. § 2025.220(a)(4));
- intention to audio record, video record, or transcribe by stenographic method through instant visual display of testimony (Code Civ. Proc. § 2025.220(a)(5));
- intention to use recording at trial or hearing if deponent is a treating physician or expert witness (Code Civ. Proc. § 2025.220(a)(6));
- all parties and attorneys served with notice (Code Civ. Proc. (Code Civ. Proc. § 2025.240(a)).
Furthermore, there are a number of additional requirements that must be met for out-of-state deponents.
Depending upon who is being deposed and where that party or non-party presently resides impacts the number of days thereafter the deposition can be held:
- 10-days after personal service;
- 10-days plus 2 court days for fax, electronic, express, or overnight (with consent);
- 15-days in-state by mail;
- 20-days out-of-state by mail;
- 30-days out-of-country by mail.
(Code Civ. Proc. §§ 1013, 2016.050, 2025.270(a).)
These timeframes are important because if the Notice of Deposition is defective, it will affect the timing of their objection and motion to quash. For example, your attorney must serve a written objection on the noticing attorney within 3 days before the deposition. So, it is essential that you deliver the Notice of Deposition to your attorney as soon as possible.
2. Set Aside Time to Organize Requested Documents and Facts of Your Case.
Set aside some time on your own to get reintroduced to the subject-matter. This can be done by reviewing and organizing the requested documents, creating a timeline of the key events and facts, or putting together a coherent outline of what this matter is all about and/or what you will likely be questioned about. This is not to suggest that you should sit up, night after night, attempting to memorize potential questions and what you plan to say at your deposition. No, to the contrary. Rather, this process is you engaging in normal studying of the subject matter to which you will be tested on. And, as the matter may be from years ago, you need to get reintroduced.
One excellent way to prepare for your deposition is to review your written answers to any previously received interrogatories or requests for admission. These questions or statements are often clues as to the general nature and scope of the questions you will be asked at your deposition. Furthermore, your answers at your deposition are expected to be consistent with your answers to these interrogatories and admissions. If they are not, you will lose credibility as a witness at trial or hearing.
3. Meet and Practice with Your Attorney.
A deposition may last less than one hour or may take several hours to complete. While most depositions are concluded in less than one day, there are instances where the deposition continues for two or more days. Unfortunately, only the questioning attorney taking the deposition could know the length of the deposition – and even they might not know.
Thus, it is essential that you meet with your attorney and practice. I would suggest two meetings. First, make an appointment well in advance of the deposition to review the facts and circumstances of your case with your lawyer. Identify points of confidence and strength and points of concern and weaknesses as best as you can ascertain. Also use the opportunity to begin discussions on who will be present to assist you during the deposition and whether any travel arrangements or costs need to be made. Furthermore, find out the experience the attorney has who will be handling the deposition, their own experiences, and any individualized advice they may have for you.
The second meeting should be within two weeks of the deposition. It should really be a test run. You and the attorney handling your deposition would be present while one of your attorney’s colleagues would test you through questioning. Even if you anticipate a multi-day deposition, this test run should last no more than 3-4 hours, maximum. Then discuss what, if anything, you will be bringing to the deposition with you. More than likely your attorney will be assuming that responsibility in order to comply with the Notice of Deposition.
4. Clear Schedule, Rested, Well-fed, On Time, and Looking Sharp.
Well before the date of the deposition, make sure to clear your schedule on that date. You should try to make it where you have nothing before or nothing after that might distract you and your performance at the deposition.
The night before the deposition, stay away from any alcohol and get to bed early so that you are rested. In the morning, eat breakfast so that you have a full stomach. Take a shower, clean-shave or groomed facial hair, non-distracting hair style, and brush your teeth – remember, your face will be the “star” today. And dress appropriately. No, do not rent a tux or a ballroom gown. Just wear professional attire (e,g, full suit or dress shirt, tie, slacks/skirt, socks/stockings, closed toed shoes, etc.). Keep in mind that your adversary will be gauging you as a witness and appearances do matter.
On the day of the deposition, make sure that you and your attorney meet in advance for one final confidence boost. At least 30 minutes beforehand is usually good enough. Please note that if you arrive at the site of the deposition before your attorney, be sure not to discuss any aspect of your case with anyone. Even a friendly question about how your injuries occurred could potentially jeopardize your case. While you might have the urge to be friendly and personable, wherever possible, avoid any discussion that relates to your matter.
4. Behave – But Do Not Expect it to Be Returned in Kind.
You will not do yourself, your attorney, or your matter any favors by behaving poorly during your deposition. Thus, act as if you are in the court room and a judge can hold you in contempt for even the slightest demonstrative behavior. Address all in attendance by their formal names. Act business-like.
At the same time, be prepared for the boorish behavior of the questioning attorney or the opposing party. They will treat you disrespectfully, interrupt you during your answers, object to your answers as being non-responsive or defective, and try to stir negative emotions out of you. Do not take the bait.
5. Audible, Short, Concise, Precise, and Direct.
In a deposition, you need to realize that your words are likely going to be your worst enemy. The questioning and the answers the opposing attorney elicits from you are designed to weaken your position, your evidence, and will be used (or held in reserve to be used) against you at your actual hearing. Thus, audible, short, concise, precise, and direct responses to questions are your weapon. Yield this weapon consistently and you will minimize self-inflicted wounds. Furthermore, it will demonstrate to your opponent that you are a prepared and competent litigant – remember, your opponent is gauging you as a witness. So, how you communicate will matter.
Try to avoid legalese, technical jargon, or slang. Try to use precise but understandable language and terminology.
“Be audible” – is that really needed advice? YES. A good questioning attorney may lull you into a comfort zone where the conversation seems almost personable. As a result, you may fall into a social habit of answering via gesture, facial expression, or even a drawing a picture in the air. First, if the deposition is not being videotaped, your gesture or expression cannot be recorded as an answer. Second, if the deposition is being videotaped, your gesture or expression may be damaging or more revealing than an audible answer. Third, if you are too quiet or too quick in your speech, the stenographer might not pick-you-up. They may have to interrupt you and ask you to repeat. This may cause you to lose your train of thought. So, imagine you are dictating into a microphone while answering.
6. Be Vigilantly Unemotional.
First of all, do not get upset with the question, the questioner, the evidence, your opponent, your attorney, and – most importantly – yourself. Imagine you are playing any type of game of deception, such as poker or liar’s dice. Just like in those games of mental combat, emotion is a big tell and goes a long way towards determining whether or not the questioner will continue to press that specific issue or move on to another topic. Furthermore, emotion causes one to speak longer. While some people will ramble on due to nerves, almost everyone rambles on when they are speaking from emotion. Just do not do it!
7. Do Not Anticipate a Line of Questioning.
The opposing attorney will employ any number of tactics to try to catch you off your guard, rile-you-up, and get you to start answering narratively. That is what your opponent wants – it wants you to freely volunteer information without a question. When and why does this happen? It happens when you anticipate that the questioner is moving to a different topic and will be asking an assortment of questions about that particular subset of the underlying dispute. However, questioners do not always do that. In fact, they oftentimes jump around, back-and-forth, and repeating or slightly modifying the same question throughout the entire deposition. In fact, the questioner may even say, “we are now going to move to subject B,” ask one question about “B”, and then jump back to “A” with a number of questions about it. It makes it seem as though you tripped up or made a mistake in how you previously answered questions about “A”. And if you are getting geared up to talk about “B”, then you will instinctively attempt to “fix” the “mistakes” by providing even further information than you previously supplied in the first go-around on subject “A”. Just do not do it!
8. Listen to the Question.
We used to combine this with number 9 below, but split it up when we realized how important this bit of advice is. You need to (1) clear your mind and (2) listen to the question being asked. It is actually quite more difficult in practice than it would seem when imagining. The first part is a safety valve to numbers 5-7 above. If you tried but failed to follow our advice in 5-7, then once you get to the first part of number 8 you will hopefully hit the reset button to your mind, clearing it of all of the junk that built up from the previous questions or line of questioning. This will allow you to then focus on the second part – listening to the question. If you can positively overdo anything during your deposition, it is listening. If you hear the question but don’t understand it, ask that it be repeated. If you still do not understand the question, then answer, “I do not understand the question.” This simple response might just annoy the questioner. Or, with an unprepared opposing attorney/questioner, it may fluster them a bit and have them reveal more in their explanation of the question than they originally wanted to.
9. Pause After the Question is Asked.
Everyone’s natural inclination is to quickly answer the question asked. Why? Well, first of all, it is your hope that by doing so you will end the pain of the deposition earlier. However, as you know, you have no idea on the length of the deposition. Secondly, people assume that answering quickly shows confidence. However, if your answer too quickly it may serve as a tell that you have rehearsed answers regarding that matter. If your speed in answering changes from one question to another, it may make it look like you are trying to hide something
A football analogy would be an offensive player popping up immediately after receiving a vicious hit. The idea behind popping up immediately is to show the defensive player that the big hit did not faze the offensive player at all. However, Hall-of-Fame running back, Jim Brown did the exact opposite throughout his career. Why? Because, by getting up slowly after every single hit or tackle he sustained throughout his career, the opponent never knew whether or not a big hit “hurt” Jim Brown. So, even if Jim Brown was the recipient of a vicious hit, injuring or dazing him just a little bit, his opponent would never know.
So, answering quickly is often not in your best interest. Furthermore, your attorney may have an objection to make for the record. For example, these objections must be raised at the deposition to be preserved at hearing/trial (Evid. Code § 765):
- ambiguous;
- compound;
- too general;
- asked and already answered;
- misstated element;
- misstated prior testimony;
- argumentative;
- assumes facts in dispute
- calls for speculation (Evid. Code §§ 702, 800, 801).
And the following objections, while not required to be preserved at hearing, are appropriate at deposition:
- incompetent witness (Evid. Code §§ 701, 704);
- inadmissible opinion (Evid. Code §§ 800-802);
- insufficient foundation (Evid. Code §§ 403, 405);
- improper impeachment/rehabilitation (Evid. Code § 780, 785);
- inadmissible parol evidence (Code Civ. Proc. § 1856).
Finally, the following objections do not have to be answered by the deponent:
- statutory privilege;
- conduct of questioning attorney (e.g. manifestly irrelevant; harassment; etc.);
- constitutional right of deponent’s privacy (e.g. religion, tax returns, settlement amount, etc.).
Most attorneys agree prior to the start of the deposition that they will reserve all other objections, until trial. This allows the deposition to be completed, in most cases, in one sitting, and yet preserves the right of the objecting attorney to have his objection ruled on by a judge before trial. Nevertheless, you may hear your attorney call-out “objection”. Most of the time, this is to “mark” the objection in the record. However, sometimes, the objection needs to be resolved before you can proceed with answer. And if you answer too quickly, the ability to object may be waived.
Finally, pausing gives you a chance to repeat the question in your head. This will provide you with focus on that specific question and answering it as concisely as possible. Although this method might prolong the deposition slightly, it is far more important that your answers be accurate and responsive than it is that you finish early.
10. Do Not Volunteer Information.
After listening to the question and understanding it, answer it directly. Do not provide more information than what is needed to answer the question. Do not speculate, estimate, guess, range, or imagine. Answer the question only if you understand the question, have firsthand knowledge of the incident in question, and can clearly recall the details sufficiently to answer.
11. Do Not Memorize Questions or Answers.
The best depositions come across as unrehearsed. Thus, memorizing and repeating prepared answers will not achieve that goal. Furthermore, if the deposition is videotaped or audibly recorded, it will look and sound horrible. It will make you an unbelievable witness. Finally, it will serve as a tell to the questioning attorney that you are concerned about a particular subset of the matter in dispute and encourage them to “go fishing” through a more specific series of questions.
12. Answer Truthfully.
You are sworn-in and under oath throughout your deposition. Thus, your answers are to be truthful and honest. Testimony known by the deponent to be false or misleading is perjury, which is a criminal violation of the law. A conviction for perjury carries with it very serious consequences, including the possibility of a lengthy prison sentence in its own right. Furthermore, it will annihilate your credibility as a witness in the matter.
13. You Do Not Have to Know All Facts That Support Your Contention.
A common and becoming more prevalent method of a “gotcha” question is to ask the deponent to state all facts that support a contention or stated defense. For example, assume your attorney filed an answer to a complaint and alleged the statute of limitations as an affirmative defense. At the deposition, the questioning attorney then asks you to state all facts that support this defense. Such a question is not an appropriate question of a deponent (Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1263) and your attorney can object and instruct you not to answer. In case your attorney does not object and you do have to answer, then say, “I am sorry, but I do not know the answer to that question.”
14. If You Do Not Know or Remember, Answer as Such.
“I am sorry, but I do not recall” and “I am sorry, but I do not know the answer to that question” are two perfect, respectful, and legitimate answers to any question asked. Granted, if you answer as such to your name or your date-of-birth, it is not credible and will damage your ability to serve as a witness at trial or hearing. So, it should not be used to thwart questioning or falsely. However, it can be used if you do not know or do not remember. if you believe that there is a document that will refresh your recollection, feel free to identify it, and it can be produced to help you find the memory.
15. Take Breaks.
The parties will typically agree to a periodic break schedule – morning, lunch, afternoon, evening (if applicable), end time – before commencing the deposition. However, if at any time you are feeling weary or losing concentration, let your attorney know. If you need fresh air or to use the restroom, do not just “tough it out”. Let your attorney know and the parties will undoubtedly agree to a short break.
16. Obtain and Review the Transcript.
After concluding your deposition, you and your attorney will want to obtain a copy of the transcript. You will want to review it to make sure that it accurately reflects your testimony. Although the stenographer is a highly-skilled professional, they can make mistakes. If you find an error, you will be asked to note, on a separate sheet of paper called an errata sheet, what you believe your actual testimony to have been. The errata sheet is then signed and dated by the deponent and sent back to your lawyer for forwarding to the stenographer. If the errata sheet is not returned within 30 days of its receipt, the testimony may be deemed accurate as originally transcribed.
If you remember these rules, your deposition will as pleasant of an experience as it could be, given the circumstances. More importantly, it will demonstrate your preparation and resolve. This will show the opposing party that you are confident about your legal position, and are not afraid to go to court if necessary. Hopefully, this will motivate your opponent into resolving the matter swiftly and informally without the need for a hearing.