What is a Deposition?

A deposition is an interview, outside of the courtroom, where the opposing party can ask you questions under oath, and that will be recorded either by video and/or a court reporter. An attorney can (and should) be present during a deposition; however, there are strict rules on what the attorney can and cannot say during the deposition. A wide range of individuals can be deposed, including the parties, but also any witnesses or other people who might have information about the matter.

What is Discovery?

Discovery is the stage in litigation where parties can request information from each other or third-parties to prove or disprove the claims or defenses the parties have made. Litigation Discovery ensures that the parties and their counsel can learn the facts before trial and helps to narrow issues that may not be in dispute to keep the trial moving efficiently. The types of discovery requests we may receive or that we may send to other parties are Requests for Production of Documents, Interrogatories (written questions about the lawsuit), and Requests for Admissions (written statements that the other party requests that you either admit or deny). Additionally, each may party may request to conduct depositions, which is an opportunity to ask the opposing party questions under oath before trial. Parties may also request an inspection of any building or property that is subject to the lawsuit. Discovery is one of the more time-consuming parts of litigation, and therefore, it is important to start thinking about discovery early in the litigation process and to gather documents and information as soon as the case is filed to make it as easy as possible to respond to discovery requests.

What is the purpose of a Deposition?

The opposing side usually takes your Deposition with three goals in mind. First, they want to discover what facts you have in your actual knowledge and possession regarding the issues in the lawsuit. In other words, they are interested in what your story is now and what it will be at the trial.

Second, they want to pin you down to a specific story so you must tell the same story at the trial and they will know in advance what your story will be.

Third, they hope to catch you in a lie, and thereby they can show at the trial that you are not a truthful person and therefore, your testimony should not be believed on any of the points, particularly the crucial ones.

What Things Should I Do If I’m in a Deposition?

Depositions can be intimidating even for people who have participated in depositions before. With that in mind, here are a few tips on things you should do during a deposition.

  • Dress professionally. The deposition may be recorded and may be shown during court. Therefore, dress as if you will be in court on the day of the deposition. If you have questions on how to dress, please feel free to reach out to our office.
  • Answer only the question being asked. Do not try to provide the right answer or to explain the answer you are providing. Your attorney can ask you questions at the end of the deposition (although this is not common) and/or you can explain your answers at trial. As such, you need not explain your answers unless specifically asked to do so by the other side.
  • Answer “Yes” or “No” questions simply. You should not explain an answer unless asked. Therefore, it is acceptable to simply answer a “Yes” or “No” question with a one-word answer. On the other hand, if the answer is neither “Yes” nor “No,” you can deviate from this rule and explain why you cannot answer the question that simply.
  • Speak clearly and audibly. The court reporter will be taking a transcript during the deposition and cannot record head nods or other nonverbal communications. Therefore, it is important that your answers be audible and loud enough to be heard by the court reporter. On that note, please also make sure to wait to answer the question until it is fully asked and do not speak too quickly as doing either thing will make it hard for the court reporter to create an accurate transcript of what is said.
  • Ask for a break. Depositions can sometimes be long, so if you need to take a break, ask for one. Everyone wants to get done quickly, but nothing is wrong with taking a few breaks during the deposition.
  • Tell the truth. Assume that the lawyer asking the questions already knows the answers. If you lie, you can end up in more trouble than if you had told the truth during the deposition.
  • Admit when you do not know the answer. Nothing is wrong with saying “I don’t know” or that you have to check your records. It is better to say you do not know then to provide incorrect answers that your attorney will have to explain at trial. However, you should make a good faith effort to answer the questions and should not state you do not know something to avoid answering the question.
  • Make sure you understand the question. You should pay close attention to each question the attorney asks. Make sure you understand it entirely before you try to answer it. If you do not understand, say that you do not understand the question, and ask the attorney to explain the meaning before you try to answer it.
  • Provide short and to the point answers. Most answers should be a sentence long. It should not be a paragraph, a chapter or a book. If your answer is longer than a sentence, you are probably giving too much information.

What Things Should I Not Do If I’m in a Deposition?

Because depositions will be used in the trial, some things should not be done during a deposition. Here is a list of a few things you should not do during a deposition.

  • Volunteer information or explain your answers. Wait until the lawyer asks for your answer, and limit your answer only to that question. You are to give the facts as you know them. You are not supposed to apologize or attempt to justify those facts. Any attempt as such may make it appear as if you doubt the accuracy or authenticity of your own testimony or may provide the other side with the information they did not know and were not going to ask about.
  • Argue with the lawyer or other party. A deposition can feel argumentative, but the lawyer who is asking the questions is simply doing his or her job. Avoid arguing with the person asking the questions or becoming aggressive as this will reflect poorly later at trial. Just answer the questions and know that you will have the opportunity to provide your side of the story at trial.
  • Discuss anything during a break. If you must talk about what is going on during a break, make sure it is with your own lawyer and where no other persons can hear. Otherwise, you might find what you talked about during your break the next topic in the deposition.
  • Guess. Only answer questions you know the answer to. If you find you have to guess, just say “I don’t know” or “I don’t remember.”
  • Never state facts you don’t know. Opposing counsel will often ask a question that you might think you should know the answer to. You should not try to guess and estimate the answer to a question. A guess or an estimate is often the wrong answer and one from which the opponent can show that you either don’t know what you are talking about or simply that you are deliberately misstating the truth. Generally, the attorney is in a position to know what the answer should have been and it may very well be that he asked the question because he knew you wouldn’t know the answer, but felt sure that you would be compelled to guess.

Do I have to answer every question and what are objections?

For the most part, you must answer every question asked. If the other side asks an improper question, your attorney will object for the record, but you must still answer the question. If the other side asks too many objectionable questions, your attorney may stop the deposition or call the judge, but this is rare. Furthermore, if the other side asks for “privileged information,” such as conversations between you and your attorney, you will not be required to answer the question, and the attorney representing you in the deposition will advise you the same.

To learn more, schedule a consultation by calling (816) 460-1819 or by going to https://rickdavislegal.com/#contact.

About the author

Rick Davis is an attorney with Levy Craig Law Firm in Kansas City Missouri. Rick's practice focuses primarily on the areas of real estate and construction law and he regularly represents parties in all facets of the real estate industry. His past and current clients include real estate investors, developers, brokers and agents, contractors, homeowners, lenders, and others in the real estate industry. He serves clients in both Kansas and Missouri. Mr. Davis is a member of the Kansas Bar Association, the Missouri Bar, the American Bar Foundation, the American Bar Association Real Property Trust and Estate Law Section, and the Construction Lawyer Society of America. He graduated with his B.G.S. degree from the University of Kansas and earned his J.D. degree from Washburn University School of Law. Rick has received numerous awards, including an Martindale-Hubbel AV peer rating (the highest available) and being selected as a fellow to the American Bar Foundation. To schedule a consultation with Rick, call (816) 460-1819