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1) What to Avoid Saying During a Deposition
Depositions 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.
2) 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.
3) Unsure How to Answer a Question
Just like trial prep at our law office that we do here in our mock courtroom in our law office, we also do deposition prep with our clients. In the weeks before the deposition happens, we bring them in, and one of the things that we spend a good amount of time with them on, after going over the facts of the case with them, is what to do if they don’t recall the information that a question is related to, if you don’t know the answer to the question. Our answer to that is very simple – say, “I don’t recall.” If they get asked the question 1500 ways, “I don’t recall.”
Most of the time, the deposing lawyer will try to set other things out there to kind of jog your memory and get you to remember it. At some point, if you do remember, there’s nothing wrong with saying, “Oh, that’s right! You said that and reminded me of this. I do remember. This is what happened.” But if after them trying to jog your memory and trying to get you to recall, if you still don’t recall or you don’t know the answer, you don’t know. Stick with that, “I don’t recall. I don’t understand that.”
A lot of times the deposing and opposing attorney will try to get you to put things on the record that you don’t recall. They try to pin you down to statements because all of this stuff admissible in court is deposition. They use it for motions of summary judgment and all that stuff. If you don’t know, you don’t know. If you do know, well, you do know. Discuss it with your attorney. Again, short answer, if you don’t recall, you don’t recall; say, “I don’t know,” but do not guess.
4) Types of Deposition Questions
One of the things in deposition prep that we always get from clients is, “What are they going to ask me about?” The answer is they can ask you about anything. They could ask you what time the sun came up this morning and what you ate for dinner last night and did you want the Dodgers to win the World Series, or were you rooting for the Rays? They can ask you anything about that. They should limit their questions to those that are relevant to the case. That could include background information, if you’re married, your children, where you grew up, your education. Have you’ve ever been sued before? Have you ever sued someone before? Have you ever had your deposition taken before? How did you apply for the job? Who told you about it? Have you ever been the victim of any crime?
There’s a number of things they can ask you about. Eventually, they’ll drill down to the facts of the case because, again, the purpose of the deposition is to get some type of testimony on record regarding the facts of the case. We have seen some deposing attorneys ask some bizarre questions, and clients ask, “Do I have to answer that?” If that’s what they want to waste their deposition time on, asking you about what the breed of your puppy is, well, that’s on them; they’re wasting their time. They only have a limited amount of time. If they start asking questions that are badgering to you or in a way that you are being badgered, then your attorney will step in and put an end to that and go from there.
The short answer is they can ask you questions about all kinds of crazy stuff. Answer truthfully. If you don’t know, you don’t know. If there’s a relevance issue concerning what they’re asking you, your attorney will speak up and put an end to all of that stuff.
5) Preparing for a Deposition
Preparing for a deposition is critical to a deposition. Your attorney will get with you a few days or weeks before the deposition goes and they’ll go over the facts of the case with you, including essential case documents, i.e. if there have been other discovery documents that have been submitted in a rogatory or requests for admissions, medical records, police reports. Anything that’s relevant to your testimony, the deposition, your attorney will go over that with you to make sure that you understand what the questions could potentially be about this. Sometimes that can take a good deal of time, so they’ll go over that with you. They’ll go over the do’s and don’ts of depositions, give you a little packet of information to help prepare you for the deposition, so that’s it not a scary thing for you. They do what’s necessary to calm you. This happens days before, in some instances weeks before, the deposition itself comes.
On the morning of the deposition, you’ll get there early – at least, with our office you’ll get here early. We’ll go over that stuff with you again, make sure that you’re situated, and make sure that you’re prepared to be deposed. Deposition prep is critical to a successful deposition that will elicit facts that are helpful to your case and helpful to get a positive outcome for you.
Have you or a loved one been involved in a legal case and have questions about what to do when preparing for deposition? Contact experienced Phoenix Criminal Defense Attorneys at Smith & Green today for a legal consultation.
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