Depositions are statements under oath, taken down in writing, that can be used in court. They are also known as examinations before trial or EBTs. You’re asked questions by the defendant’s lawyer and you give answers. This will take place in a lawyer’s conference room with both attorneys present, along with a stenographer as well as any other parties to the lawsuit (if they want to be there and watch).
Depositions are governed in New York by CPLR Article 31 but for the client being deposed the importance of depositions lies not in legalisms but in preparation (yours and your lawyer’s) and what’s going to happen inside the room.
Here are 10 important things to know about depositions, all of which your lawyer should know and impart to you (before your EBT).
- The depositions of the plaintiff and the defendant are the most important aspects of your lawsuit, even more important than the trial itself. Deposition testimony will either be almost exactly what the party would testify to at trial or, if trial testimony varies significantly from EBT testimony, then it will subject you to a blistering, damaging and potentially fatal (to your case, that is) cross-examination. Get it right the first time (at your EBT).
- You must be prepared by your attorney before your EBT – not 10 minutes before – so that you understand nearly all of the questions you will be asked, you review in advance the facts of your case so that you are not hemming and hawing the entire time during your deposition and you know that your aim is to answer the defense attorney’s questions without volunteering anything and to do so in a way that makes a good, truthful and forthright impression.
- Let me expand on #2. You are to say little. Not much. Just answer the questions. If it’s a question that can be answered with the one word answer "yes" or the one word answer "no" then that’s all you say. If you are not sure or don’t know, then just say that: "I am not sure" or "I don’t know." That’s it. Nothing more. Not another word. And never, ever the word "because." Never say: "I don’t know because ….." That will open you up to a whole line of questioning that may be damaging.
- Make sure your attorney visited the scene of your accident well in advance of your EBT and is extremely familiar with all of the facts. It is so obvious when a lawyer has not for example been to the scene of a car accident and fails to ask questions that one having seen the curves in the road or the obstructions there would have known about. Huge errors are made without preparation.
- Do not allow yourself to get rattled or upset. One of the most important things you can accomplish is to have defense counsel write in his report to his insurance carrier (it’ll be done that very day) that you appear to be straightforward and will make a good impression on the jury. If everyone agreed on the facts of your accident, you probably wouldn’t be in a lawsuit, so the jury will have to decide whose version is correct or truthful. The jury will be affected by your appearance and demeanor. So will defense counsel and therefore the defense insurance company who may offer to settle after your favorable EBT (or dig in and forge ahead to trial after your unfavorable EBT).
- Do not lie about any significant facts. Do not lie about any insignificant facts. Do not lie. Period. It will come back to haunt you. Big time. Evan Schaeffer, a noted St. Louis attorney who writes extensively about depositions, advises attorneys to assume all witnesses are lying and to wear down witnesses with questions until the truth comes out. Do not lie.
- Do not have a diary or any other writing with you that you want to refer to or look at during your deposition. That will allow defense counsel to demand to see the entire thing and question you about it line by line.
- Your attorney will probably tell you to call his office the day before to confirm your deposition appointment. That’s because depositions are often adjourned by defense counsel for many reasons – juggling a huge caseload, intentional attempts to delay the case, office scheduling errors and the like. Be patient. Your own time is of course very important and to be respected but when these delays occur you will have to swing with them. Your attorney will know when to get the judge involved for you.
- Understand that lawyers at EBTs are given wider latitude than they are at trial insofar as the relevance of questions is concerned. They are permitted in depositions to explore areas to try to find relevant information or questions that wold lead to relevant information so don’t expect your lawyer to be objecting and preventing questions that you think aren’t directly relevant to your case.
- Relax. Victoria Pynchon, author of Settle It Now Negotiation Blog and full-time attorney-mediator, suggests that a "winning" deposition, one that was approached with great preparation and at which some points were scored, is often the only win that will be needed – cases can and often do settle after successful depositions. So, be comfortable knowing that the truth will prevail and that if you and your lawyer have properly prepared for your EBT (and the defendant’s) then you are likely on your way to winning your case (or at least to negotiating a good settlement).