If your lawyer has told you that opposing counsel has scheduled your deposition, you’re probably wondering what you should expect. While I can’t say that your deposition will be a pleasant experience, it probably won’t be as bad as you anticipate. Your lawyer will surely have a meeting with you prior to the deposition to let you know the type of questions you will be asked and the basic ground rules for giving a deposition. Of course, this meeting might be scheduled only a few days before the actual deposition, so this article is to help alleviate your anxiety about the process in the meantime. For those who don’t already know, a deposition is similar to testifying in court — you will be under oath and questioned by opposing counsel — with some important differences.
What is a Deposition?
A deposition is one of the tools a lawyer can use to find out about the opposing party’s case — collectively these tools are known as “discovery”. The deposition is usually the most important discovery tool available to a lawyer, as it is his only opportunity to directly question an opposing party about his or her case prior to trial.
Depositions don’t take place in courtrooms. There will be no judge present. Usually, they take place at a court reporter’s office, your lawyer’s office, or in the case of employment discrimination claims, at a conference room at your place of your employment. There will be no witness stand. You’ll usually sit at a conference table, with you and your lawyer on one side, and opposing counsel on the other. Your lawyer will be present, along with opposing counsel, a court reporter (the person who writes down everything that is said), and often a representative for the defendant. Don’t be intimidated by the presence of your employer or supervisor. This person can’t ask questions (though he can try to feed questions to opposing counsel) or confront you. He is allowed there mainly as an observer.
After the court reporter places you under oath, opposing counsel will ask you a series of questions about your case which you must answer truthfully. The court reporter will record every question and answer and later produce a written transcript of the entire questioning session. The purpose of the deposition is to allow the opposing attorney to learn about your case, to find out how you will testify at trial, and to lock in your answers under oath so that if you testify differently at trial, it can be used to impeach you.
What Kind of Questions Should You Expect at Your Deposition?
Because the discovery process is meant to allow each side to learn practically everything about the other side’s case, the scope of questioning at your deposition is much broader than is allowed at trial. Typically, very few (or no) objections are made during a deposition, unless they are made to assert a privilege (such as attorney-client) or to address a problem with the “form of the question” (such as a confusing or misleading question). All other objections, such as hearsay or relevance, will normally not be made at a deposition because they can still be asserted well before trial (the purpose of objections is to keep inadmissible evidence from the jury). So, for the most part, expect your own lawyer to sit at the deposition like a potted plant. This doesn’t mean he isn’t doing his job — he is silent only because he doesn’t need to make any objections at this stage of the process.
During the discovery process, parties are allowed to ask each each other any question which might reasonably lead to admissible evidence. The answer itself need not be admissible for the question to be asked. In fact, questions which generate hearsay-type answers are frequently asked at depositions, and must be answered. So, if opposing counsel asks you what a co-worker said, you need to answer. He is not asking the question because he thinks your answer will be admissible at trial. He is asking it to see who else he may need to depose.
You can expect to be asked questions about the following subjects at a typical workplace discrimination deposition:
- your prior employment,
- your education and experience,
- your resume or job application (especially if you stretched the truth on it),
- any incidents which support your discrimination claim,
- statements by co-workers and/or supervisors which relate to your discrimination claim,
- the names of people who will support your discrimination claim, and
- if you claim emotional distress, expect to be questioned about other things which cause you distress (some of which may be painful to discuss).
This is by no means an exhaustive list of topics.
Expect No Help From Your Lawyer at Your Deposition
Your lawyer cannot feed you answers during your deposition. Despite what you may have seen in movies or on TV (and sometimes in front of congress), your lawyer cannot whisper the answers in your ear while you are being deposed. You must answer on your own.
Rules for Answering Deposition Questions
The only formal rules for answering deposition questions are that you be truthful and that you answer orally. Head nods or shakes indicating “yes” or “no” will not show up on a written deposition transcript, so always give a verbal answer. Along the same vein, avoid saying “uh-huh” or “uh-uh” instead of yes or no. Don’t get upset if you screw this up and opposing counsel has to remind you on occasion to give verbal answers. Everybody screws this up.
Aside from those formal rules, I suggest you follow these informal rules (my rules) as well:
- Wait until opposing counsel completely finishes his question before answering. This is necessary for a clean transcript — the court reporter can only take down what one person is saying at a time. Also, you may be wrong about what you think the defendant is asking if you don’t wait until the end of the question.
- Only answer the question that is asked. Don’t try to shoehorn information into an answer because it’s something you feel is important and you haven’t been asked about it. Your deposition is not the time to tell your story. It is the time for the defendant to learn about your case. By giving the defendant information he didn’t ask for, you are helping him prepare his case.
- If you don’t understand a question, ask opposing counsel to rephrase or clarify it.
- If you are estimating or guessing about something in your answer (such as dates you can’t specifically recall or the number of times someone called you a certain name), state that you are estimating or guessing as part of your answer. If you don’t, and your answer is wrong, it could be interpreted as lying.
Expect to Be Asked Questions You Can’t Answer
No one’s memory is perfect. If you are asked about something you can’t remember, it is perfectly fine to answer “I don’t remember” or “I don’t know.” Even if you feel that you should know the answer, if you don’t, do not try to fake it. You will likely guess wrong and later be perceived as lying.
Expect Your Own Lawyer Not to Question You at Your Deposition
Keep reminding yourself that your deposition is not the day to tell your side of the story. That day is at trial. The deposition is the defendant’s chance to learn about your case, so don’t expect your own lawyer to question you when the defendant is done. You lawyer does not want to open up new areas of inquiry which the defendant may have missed.
Don’t Allow Opposing Counsel to Provoke You
Depositions can be frustrating, and it can seem like opposing counsel keeps asking the same questions over and over. Sometimes opposing counsel will even intentionally try to provoke you to anger, just to see how you will react. Don’t take the bait. Try to stay as calm and level-headed during the deposition as possible. You want to be perceived as the sympathetic victim, not as the angry, vindictive hothead. Opposing counsel will report back to the insurance company (or the higher-ups at your company if it is self-insured) about how you comported yourself during your deposition. Staying cool, even when he’s trying to provoke you, will show that you will make a great witness at trial.
Expect Opposing Counsel to Try to Adopt a Conversational Tone at Your Deposition
Because depositions can often feel like conversations, many plaintiffs make the mistake of adopting a conversational tone. By this, I mean that they tend to speak more freely and share more than they should because it feels like they’re having a conversation. Keep reminding yourself during the deposition that “this is not a conversation”. Be polite, but don’t forget that your job is to answer only those questions which are asked. Volunteering information should be avoided.
How Long Should You Expect Your Deposition to Last?
In most workplace discrimination cases, the plaintiff’s deposition takes many hours. For cases which involve a long history of workplace conduct, it may even take more than one day (8 hours) to complete. Expect your deposition to last at least 4 hours, and don’t be surprised if it goes much longer than that.
You will be given a break for lunch, and you can request a break any time you need one (to use the bathroom, smoke or just stretch your legs). A deposition is not an endurance contest. Reasonably spaced breaks are expected. Just don’t try to take a break while a question is pending. You can’t use breaks to covertly confer with your lawyer about how to answer a pending question.
Always Read and Sign Your Deposition
When your deposition is finished, the court reporter will ask if you would like to “read and sign” or “waive it”. You always want to choose “read and sign”, and you should let your lawyer know this before your deposition (some lawyers automatically waive it, which is a terrible idea). What you’re being asked is whether you want the opportunity to read the deposition transcript before it is finalized. You should demand this because it provides you an opportunity to correct not only errors in the transcription (court reporter errors) but also errors in your actual answers.
If you spot a statement in the transcript which you realize you answered incorrectly, you can substitute a new written answer for it on an extra sheet of paper known as an “errata sheet”. The new answer will be your “official” answer, even though the final transcript will show your original answer (the errata sheet gets added to end of the deposition). Know that if you change an answer, it may open you up to further questioning (a second deposition) about the reason for the change and any follow up questions. When you’re happy that the deposition is accurate, you “sign” it to indicate such — hence the question about whether you want to “read and sign”.
Some Final Housekeeping Matters About Your Deposition
How should you dress for your deposition? I suggest that you dress as you normally would for work (if you wear a work uniform, you can substitute “business casual” attire).
Show up for your deposition early. This will give you time to meet with your lawyer one last time right before the deposition so you can ask last minute questions and get some final advice.
Finally, when the defense attorney says “no more questions”, don’t hang around any longer than necessary. Leave before he thinks of any questions he might have forgotten.