3 Deposition Tips

Have you or a loved one been involved in a criminal defense case? Check out these 3 deposition tips, then call our Phoenix lawyers today.

What to Avoid Saying During a Deposition

3 Deposition TipsDepositions can be very unnerving to people. It’s really weird. You’re sitting here, there’s this person typing really fast and this guy, some other attorney who you don’t know who this guy is, asking you all these questions: How many kids you have? Where did you grow up? Where did you go to high school? Then, they start talking about the facts of the case and drilling down, and pinning you down to answers, and asking you stuff about things that you really don’t remember about. We’re often asked, “Is there anything I shouldn’t say in a deposition?” We’re going to tell them what we think. You’re not in the deposition to be the lawyer; you’re in the deposition to be the deponent.

What should you not say in a deposition? You should not say something that is not true. Don’t tell a lie, because it’ll come back to bite you. Tell the truth. Don’t guess. If you don’t know, you don’t know. Stick to your truthful answers. Make sure you understand the question before you answer it. Listen to the question. Don’t speculate.

Again, don’t lie. If you don’t know, you don’t know. If you telling the truth and not knowing what you don’t know, or not recalling what you don’t recall, is not helpful to your case, that’s why you have a skilled lawyer that knows how to deal with those things that you don’t remember and deal with the truth that you must tell. Tell the truth, don’t guess, stick with your truthful answers, and your lawyer will deal with the rest.

Definition of Deposition

Sometimes getting that deposition notice can feel like you’re almost being summoned to testify in court. Frankly, it is similar. The difference is there’s no judge at a deposition. It’s the two parties and their attorneys. If the judge needs to be called because there’s some type of dispute about a question or something like that, the judge can be called. Very rarely does that happen because judges don’t like to be called in the middle of depositions. They figure two licensed attorneys should be able to work these issues out on their own.

A deposition is basically a setting where the lawyer, the deposing attorney, sits with the deponent and they can ask questions relative to the case. There’s a difference between lay witness depositions and expert depositions. Experts are ones that are giving opinions about a matter; lay witnesses are those that are testifying about the facts. The court reporter is there. You get sworn in, just like you would in a trial. You have to tell the truth. You’ve got to tell the truth. Then there’s a litany of questions that are asked.

Nowadays, because of some of the issues that we’re facing societally, they offer a lot of virtual depositions or the depositions can be video recorded. So, a deposition can be virtual, where folks are in different places. There are still in-person depositions that are happening. One of the key things that you must remember about a deposition is it’s deposed; it’s to get to the truth. You have to tell the truth. You’re sworn in. If you tell a lie, it’s the same as being under the penalty of perjury.

Here at our office, we do deposition prep with our clients. We go over their case file with them, the notes with them, especially if the other party is doing the deposition, so that they know what to say, what to answer. You have to answer the questions truthfully. We could object, but I’m limited in my objections. You still have to answer the question, unless I specifically say, “Don’t answer the question because the matter is privileged.”

There’s a whole deposition preparation thing that we go through with our clients to make sure they’re ready for depositions. It’s bound to happen in the course of a civil case, particularly if you are a party here in Arizona. Parties are allowed to be deposed without the court’s intervention. If it’s a non-party, then you’d have to get a stipulation from the other side or the court to allow the person to be deposed.

You want to talk with your attorney – that’s a part of the decision being made – about who will be deposed in your case. Sometimes we don’t depose people in a case because we want that sense of they don’t know what this person is going to say when it comes to trial. That’s all litigation strategy. Talk with your lawyer. They’ll prep you for a deposition if you are the deponent, and they’ll discuss with you who needs to be deposed and the costs associated with that and how it will play into your case. Talk to your lawyer about it, and we’re sure you’ll come up with a great deposition plan that will help your case.

Refusing Deposition

We had a case recently where the bad guy went through great lengths to avoid a deposition. We sent a service of process out several times to serve this deposition notice, and this guy was just not coming to a deposition. He was the defendant’s bad actor and he needed to be there for the deposition; it really crippled that case. We’re often asked, “Do I have to show up for a deposition in a civil matter?” No, not if you don’t want to, but it can weigh against you.

Now, a little bit different analysis. If you’re a party to the case, you probably want to show up to your deposition because it’s not going to look good at the court. Remember, depositions are the discovery tool. Third-party depositions of other folks, a little different scenario in analysis. Should you be deposed if you’re a party to a case? Yes, get the facts out. If you’re a third-party person, you’re not one of the parties to the case, do you have to be deposed? No, not if you don’t want to. Could the judge issue a subpoena ordering your deposition? Yes. If the judge issues a subpoena ordering your deposition, then you’re in a completely different place – the judge is telling you to show up to be deposed.

If you’ve been served with a subpoena to be deposed or a deposition notice, call your lawyer. Contact your lawyer and let them discuss with you whether or not you can or should show up. Whatever it is, you want to make sure that you’re doing what’s necessary to get the best outcome for your case if you’re a party to the litigation.


Have you or a loved one been involved in a criminal defense case and have questions about these 3 deposition tips? Contact experienced Phoenix Criminal Defense Attorneys at Smith & Green today for a legal consultation.

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