Your deposition can be used in trial because you’re giving testimony under oath in your deposition, just like you would be in a courtroom. It can be used in trial either to show a prior consistent statement or a prior inconsistent statement. Additionally, it almost likely will be used if you change your story between the deposition and trial.
Depositions are usually scheduled for an entire morning or an entire afternoon, so you should plan at least to be in the deposition for either an entire morning, so 9:00 AM to noon, or an entire afternoon from 1:00 PM till 4:00 or 5:00 PM in the afternoon.
Well, for as far as your attorney fees, if you’re using our firm, it doesn’t cost you any extra because it’s part of the contingency fee. The other side’s attorney, they have to pay them by the hour so that’s going to probably cost them maybe a thousand dollars for an afternoon, and then you also have to pay the court reporters for their transcripts, so you can expect, depending on how long a deposition takes.
At the deposition, it will be the court reporter, the opposing attorney, your attorney, and yourself. It’s commonly asked if you will see the other party during the deposition. Usually, they will not be there. They do have the right to be there, so there is a small possibility. It’s important to know that the judge will not be there. If there’s a dispute that comes up during a deposition that needs to be resolved by the judge, then the parties can try calling the judge, but the judges are super busy, so they’re probably not going to get a hold of the judge.
Depositions are scheduled by the two attorney offices. Usually, the opposing attorney will reach out to our office and propose a set of dates that they are available. We will then contact you to find out what dates and times works best for your schedule, as well as our office’s schedule. Next, we will propose that date to make sure the court reporter, if we are the person taking the deposition, has that availability, or opposing counsel will do that as well to make sure that that date and time works for all the parties. Once, the deposition is set, the attorney taking the deposition files a notice with the court and serves it on the other party. So, if the plaintiff’s attorney is going to take the defendant’s deposition, he or she will file a Notice of Deposition. If the person being deposed is not a part of the lawsuit, then depending on their role in the case, one of the attorneys may facilitate that, or a subpoena may need to be served on that non-party, depending on the circumstances. Generally, if they’re closely related to a party, like a spouse, then a subpoena may not be needed. With a witness, you are probably going to need to get a subpoena.
You should not bring any documents with you to the deposition. Any documentation you bring with you to the deposition, the opposing attorney has the right to see. This is why we advise not bringing any documents. The only exception to that is if it’s a subpoena duces tecum, so that’s a deposition where they’re saying, bring with you certain documents and the subpoena duces tecum will outline the documents you need to bring. A subpoena duces tecum is rare. Usually those are for healthcare providers or doctors, less often, if it’s a fact witness or if you’re a party.
Kind of the big topic areas that you can expect to be asked about are going to be how the accident occurred, what was your treatment like, did you have any prior injuries before the subject lawsuit? Have you had any injuries after the subject lawsuit and how are you feeling currently? Have your injuries improved? Have they gotten worse? How are you feeling today?
One topic that surprises people sometimes or annoys them is background. So, the attorneys are entitled to find out a little bit about your background, just to know who you are as a person, where you’re from, your family situation and things like that. The reason people get annoyed is because they feel like that has nothing to do with the accident. However, the way that you appear in court and in front of a jury and what they think of you as a human being, makes a big difference in the value of your case, because jurors don’t want to give money to bad people. It’s allowed for the attorney to ask questions to get to know you a little bit. They can’t dig deep into private stuff, but they can get into your background and your education level and your career or job.
Answer the questions truthfully and as honest as you know. We advise that you don’t volunteer information. Just answer the question truthfully and be quiet.
Then you just say that you can’t remember. Do not guess, speculate, or guesstimate. Those will get you in trouble.
Your deposition will most likely take place at our office in a conference room. Right now, during the times of the pandemic, they are conducted via Zoom, so you would come into our office, be in our conference room with an attorney sitting next to you, and you would answer the questions via Zoom.
If you catch the mistake during the deposition, we can correct it. You can correct it right in that moment, if you realize it immediately after you say something. If you don’t realize it until maybe during the break or after the break of the deposition, we can circle back and you can correct it. If you realize it after the deposition, then your attorney would reach out to the opposing attorney and clarify the mistake. We can also amend the transcript.
Your attorney will tell you what they think you need to do to prepare, but for the most part, usually in our office, we don’t ask you to do a lot to prepare because we’re just asking you to truthfully tell what you remember and to answer to the questions. There is no need to memorize anything like in a test. Remember that no one knows your facts better than you.
No. Do not consume drugs or alcohol before your deposition. At the beginning of the deposition, the opposing attorney is going to ask you a series of what I like to think of as introductory questions. One of those will be, have you consumed drugs or alcohol or any substance that may affect your ability to remember or recall events. It will hurt your testimony and your credibility if you are on some sort of mind-altering substance.
Generally, they do not ask about prescription drugs. However, if you are taking a prescription drug that you think might affect your ability to listen to and answer questions, then talk to your attorney beforehand and a solution can be discussed.
Yes, it is recorded. Usually the court reporter will make an audio recording. Additionally, the court reporter will type everything being said during the deposition. Also, if the opposing attorney or your attorney requests and pays for it, the deposition can be recorded via video.
No, you cannot record your deposition.
You can, you can take as many breaks as needed. You cannot take a break while a question is pending though. So, if a question has been asked, you have to answer the question before you take a break, but you can take multiple restroom breaks if needed.
Again, you can speak with your lawyer during a break. You cannot speak with your lawyer while we are on the record and while you are answering questions or when a question is pending. If you do need to speak to your attorney, you’ll need to answer the question and request a break. What you want to avoid is the appearance also of the lawyer coaching you. So sometimes people will naturally, when a question is asked, they’ll look at their lawyer as if they want their lawyer to like nod their head or shake their head, to give them a hint on how to answer and a lawyer should just hold still. So, if you were trying to ask your lawyer questions and he or she is not responding, that might be why as the lawyers are not allowed to coach you.
Your lawyer’s role is to listen to the questions being asked and to stay vigilant in case there is something that’s asked that is inappropriate. You lawyer will to ask clarifying questions, to make sure to help you understand the questions being asked. Also, at the end, after the attorney who was taking your deposition, asks his or her questions, your lawyer has an opportunity to ask follow up questions. Usually, your attorney won’t ask many questions, because then the other side gets to ask questions about what your attorney asked, but sometimes things need to be clarified. As we mentioned earlier, when you forgot something and you said something incorrect, you want to correct it.
So, the objection goes on the record. It’s totally for purposes to preserve the record. So, when we are in front of the judge, the attorneys can ask the judge to rule on that objection. How it’s handled is, there aren’t any speaking objections like you would see on television, or if you’ve ever been in a courtroom where the two attorneys argue over the objection and the judge makes a ruling that just goes in the transcript. If it’s a situation to where the attorney believes you can’t answer, so it’s not privileged information or falls into a category that your attorney will lay out for you during deposition prep, then you will still answer the question unless your attorney specifically advises you not to answer it.
Wear business casual clothing to your deposition.