As a party or witness in a civil case, you may have received a “notice of deposition” and you want to start your preparation. Or, you’re turning to Google rather than asking your lawyer to explain (again) the full meaning of a “deposition.” Either ways is fine! Let’s get right into it.
First: What is a Deposition?
A deposition is when the parties to a case — through their lawyers — get to ask questions of witness outside of the courtroom. This can occur several weeks — or many months — prior to trial. A deposition occurs so parties to a case can “discover” information related to the case prior to trial. (Hence, this pre-trial phase of litigation is called “discovery”).
The deposition testimony is recorded by a court reporter.
Sounds like a big deal, right?
Yes and no.
How It’s Not a Big Deal
Depositions usually occur in the conference room of one of the lawyers. There is no judge. No audience. In fact, non-parties and other witnesses are typically “sequestered” from hearing you, so they cannot build on your testimony when offering theirs, later.
Your observations and testimony is what’s key.
Your are testifying because you are a party to a case (plaintiff or defendant) or you are someone who has witnessed something relevant to a case. In a deposition, the lawyers are asking you questions because, quite frankly, the lawyers — themselves — do not know the answers.
Who Should Be Most Stressed Out?
The people at the deposition with the most to lose are the lawyers. This is because you, the witness, already know what you saw, heard, or otherwise observed, as it might relate to a case. The lawyers, on the other hand, are coming into this after-the-fact and are trying to piece together for their clients exactly what happened in regard to the dispute. Their goal is to download from your brain the maximum amount of relevant information as it relates to the case, to get the information clearly onto the written transcript, so they have the information to prepare for trial.
A lawyer needs to learn everything about his or her case prior to trial, to avoid surprise. This means, the lawyer who tries to be “clever” during a discovery deposition (to put words in the witness’s mouth) risks missing out on what the witness actually knows or will actually say at trial. In other words, the overly “clever” lawyer might have more to lose than you do.
Is the Deposition the Trial?
Generally speaking, the deposition is not the trial. We say “generally speaking” because there are certain instances (though uncommon) where the deposition is intended for use at trial. This occurs where the witness will be unavailable to attend trial in person. Examples include: a witness lives out of the jurisdiction, or has poor health, or other issue that precludes in-court testimony. Regardless, if your deposition is intended “for use at trial,” you will be given notice in advance.
Will There Be Any Tricks at the Deposition?
The short answer is, probably not. Still, many people about to be deposed for the first time feel that a deposition is where the lawyers know everything. Plus, the witness fees like she’ll be “tricked” into saying something incorrect.
Only Two Things Can Make a Witness “Look Bad”
You can lose your credibility in a deposition in two instances. One, you have previously given a different story. Or two, there are documents you are being confronted with for the first time in your deposition.
That said, situations (1) and (2) above are very rare. In reality, by the time you testify, the key documents will have been exchanged through formal requests for documents. This includes Requests for Production of Documents, pursuant to Pennsylvania Rule of Civil Procedure 4009.12 if the case is in state court.
Typically, no deposition is scheduled until after parties have responded to Requests for Production of Documents. This means, the parts get the documents first. Then the witness testimony second, most often.
Low Risk of Surprise – Most Often
The formal exchange of written information prior to a deposition significantly cuts down on the risk of surprise. Likewise, if you have given a prior statement — that can be used to impeach your testimony — you may have do some thinking about “statement” you may have given.
Track Down Prior Statements
Your prior statement come in many forms, if, for example, you;
– filled out an insurance claim where you offered details
– made a claim for government benefits where certain facts came up (for example, to get unemployment benefits, you must indicate you are physically able to work, which may contradict your claims in your personal injury claim for a car accident, for example).
– made posts you made on social media,
– sent messages or an email related to something in the case.
If none of your prior statements relate to the case, you should be fine.
Which Statements Relate To a Case
This will depend on the nature of the case. Each case is different but certain issues come up regularly.
Accident cases. If, for example, the claim may involve injuries from negligence. Instances include motor vehicle accidents: limited tort or full tort, head injuries. Or, the case could involve a bicycle collision – involving a bicycle, e-bike, or e-scooter. For each of these, the issues will be: how did the accident happen, and what were the injuries? Your testimony may be offered one or both fronts. This will depend on your familiarity with the accident and/or treatment.
Breach of Contract. If the claim is for breach of contract, the questions will be, how was the contract formed? What were the dealings giving rise to the alleged “contract”? – whether it was for a noncompete agreement (click here), construction or renovation dispute, mechanic’s lien, or non-payment of debt, including credit card debt?
Or, aside from the contract formation, how was the contract breached? Was there an alleged text by you, refusing to perform on the agreement? You might be asked about text message, which are technically hearsay. A new rule in 2022 allows text messages to be admitted into evidence as made by the owner of the phone, so long as ownership is confirmed. They may want to see your phone, or have you testify whether you owned the phone, for example.
Avoiding Problems
As a witness, it’s natural to feel like you are being ambushed because you are being compelled to testify. Your lawyer will go over all of this with you, however.
If you are a non-party and someone who merely happened to have witnessed something in a case unrelated to you, and you are not a party to the case, then you should still talk to a lawyer, yourself, because anything you say can be used against you a subsequent matter, even if it has nothing to do with the case at hand. The rules against perjury apply to deposition testimony.
All that said, if you keep your testimony to “just the facts,” you should have nothing to worry about. You will likely only run into problems when you speculate or guess incorrectly, which can — and often does — become apparent through subsequent investigation by the lawyers when preparing for trial.
Lawyer Intimidation
Many fear that a lawyer will interrupt or otherwise be rude during a deposition, when asking questions. This happens from time time-to-time, especially when your claim or defense is questionable and the opposing party’s lawyer needs to confront you, so you learn what it will “feel like” to be in trial, to enhance the chances of settlement prior to trial. Remember: it is the lawyer’s job to test the strength and weakness of your testimony, candidly.
The key thing for you to keep in mind is, you’re the witness, you were there, to witness the subject of your testimony, the lawyer was not, so no matter how frustrated that lawyers get with you or your testimony, the lawyer questioning you cannot change the facts your observed.
The stress on your part can be managed by keeping your testimony truthful and accurate as to what you actually observed, without exaggeration, embellishment, or guessing.
Keeping Lawyers in Check
There are rules governing the conduct of lawyers. A lawyer has a duty of candor toward the tribunal, which means a lawyer cannot offer false evidence to a witness to “trick” the witness during testimony, since all testimony is before “the tribunal.”
Plus a lawyer can be sanctioned for interrupting you or attempting to obstruct your testimony. This is true in both state and federal court. In the latter, the courts are particularly willing to sanction a lawyer for interfering with a witnesses’s ability to testify.
In Federal Court, Rule 30(d)(3) provides that if a court “finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.” Pennsylvania state court has a similar rule.
In a recent case in federal court — where where a lawyer allegedly interrupted a deposition necessarily, making it difficult for the witness to testify — a federal judge sanctioned the lawyer and ordered him to pay $8,500 to the party who had to re-depose the witness to get testimony without interruption.
How To Answer Questions
Listen to the Question. Before you think about what to say, think about what you’re being asked. You do not have to give any testimony beyond the actual question. So listen to the question, above all.
The question is more important than what you want to say, or what you think you have to say.
Take Your Time. The usual length of a deposition is one to three hours, so you’ll have time to answer. There is no jury sitting there watching you, impatiently. You are allowed to take your time in a deposition. In federal court, the deposition can go up to seven hours! — but that is rare.
The only thing that matters is the written transcript. The clarity of the record is key. You will not lose any “points” for pausing to thinking before you answer, because the pause is not part of the record.
“I don’t recall” is OK. If you think and decide you do not recall the answer, saying “I don’t recall” is a perfectly acceptable response.
One caveat: don’t take this too far; you cannot say “I don’t recall” to every question, if you really do know the answers. It is still perjury if you say under oath that you “don’t recall” something that you do recall and are intentionally withholding, which can be proven through other documents.
Don’t Speculate. All that said you have no duty to speculate. Your lawyer may object to a question that asks for speculation and instruct you not to answer. For example, let’s say you witnessed the aftermath of a car accident but you did not see the collision. Questions to you about the events leading up to the accident or how the collision occurred calls for speculation and your lawyer can object.
It’s OK to be “Rude”
We all volunteer information socially, at times, to avoid being rude and to obey social norms.
For example, if I were to ask you socially, did you have an OK time finding my office today? You might say, “why yes, thank you. There was no traffic and the directions provided by your office were clear.”
But in a deposition, the answer would simply be: “yes.”
See what we mean?
It takes a little practice in terms of listening to the exact wording of a question, before answering — and answering only the question asked. You’ll get the hang of it, though. The key thing to realize is: you will have time to think before answering.
What Else Will You Be Asked?
You’ll likely be asked:
– Have you ever testified or given a statement before in any other case?
– Were you convicted of a crime involving dishonesty within the past ten years (not just a parking ticket, or other misdemeanor, or anything unrelated to dishonesty). Pennsylvania Rule of Evidence 609 allows the use of a certain convictions to impeach a witness. Such evidence of a crime must be admitted if the crime involves dishonesty, such as theft, fraud, deceit, giving a false statement.
– What is your education and background? This could be important if, for example, you are testifying in a car accident case, as described above. Let’s say you came onto the scene after the accident and normally, your testimony about how the accident happened might be speculative, unless you have had prior training in accident reconstruction.
– What are the names of your family members? This may sound particularly odd and unduly intrusive, but the fact is, in a civil case, when a jury decides the case, it’s important to know if a juror is related to a party or witness in the case.
This comes up most often in smaller counties, but it can happen anywhere. Yours truly did one jury trial in Allegheny County (Pittsburgh — a decent sized city) where two of the jurors — as it turned out — were related to the opposing party’s witness!
Conclusions
In short, a deposition is a formal proceeding where you testify under oath, but with preparation and a clear understanding of what the process truly entails, most witnesses come out of saying “that wasn’t so bad.”
Call or email our Pittsburgh lawyers any time for free consultation.
