Discovery Depositions Essay

Caveat: My experience with depositions does not come from a law degree. I am not an attorney. Ironically, I have never given a deposition. Of course, my best advice is to do what your own attorney tells you to do before your depo. If anything he or she says differs from what I will outline here, by all means, take your attorney’s advice, not mine.

HOWEVER, in the event you become nervous and find it hard to concentrate before your deposition when your attorney is explaining the process or when the deposition has begun and the opposing attorney is giving his spiel regarding the “rules of a deposition,” I’ve compiled some things to remember that should make the entire process go much easier. My experience comes from being a scopist, meaning a person who edits work in software programs for court reporters while listening to audio-sync, and also from proofreading work that’s already been scoped in some circumstances. In the course of scoping, I have listened to thousands of depositions through audio-sync. I have heard literally thousands of attorneys instruct witnesses on the rules of a deposition. They do a wonderful job of it, but they occasionally forget a thing or two. Therefore, I’ve put it all here in one place for you to review the day before or day of your discovery deposition.

At the beginning of the deposition, you will be sworn to tell the truth by the court reporter. If you prefer not to swear and the reporter doesn’t include the words “or affirm,” but simply says “swear to tell the truth,” tell him or her that you’d prefer not to swear and they’ll give the oath as an affirmation.

During the course of the deposition, speak up loud and clear. Do not put your hand anywhere near the vicinity of your mouth. Do not mumble. Remember that the court reporter is making a record of everything you say and make an effort to enunciate clearly and talk a bit louder than usual to make sure your words are clear. Above all, talk slowly enough for everyone to understand you and for the court reporter to take down what you are saying.

Let the attorney finish his or her question. You may think you know where the question is going, but you may not and could possibly misinterpret something. It is very important that you wait until you are sure the attorney is finished asking the question before you answer.

Your answers should be oral. When you nod your head or shake your head, it means the court reporter has to interpret what you mean by the nod or shake. Say yes or no instead of nodding or shaking. Also, do not say uh-huh or uh-uh. That means, once again, the court reporter must interpret what you mean. The reporter’s job is not to interpret; therefore, make yourself clear by saying yes or no. Over the years, I have heard, time and time again, a conscientious attorney caution a witness not to say uh-huh or uh-uh or give a head shake or nod to signify yes or no. At the end of their spiel, they ask the witness: Do you understand? The witness invariably answers “Uh-huh,” while nodding his or her head.

If you do not understand a question, make absolutely certain that you ask the attorney who is deposing you to repeat or, if necessary, rephrase it until you do understand it. If you do answer a question, there is an assumption that you’ve understood the question as it was asked. Therefore, it’s important to speak up if you don’t understand. Simply say: “Will you rephrase that question?”

If you simply don’t hear a question, you may ask the attorney to repeat it. Often, the attorney will ask the reporter to read the question back instead of repeating it. Although some witnesses ask the reporter to read questions back, it’s better form to leave it to the attorneys to ask for readbacks.

When preparing for your deposition, remember that any notes or documents you bring to the deposition will be subject to discovery and will be copied and entered as an exhibit to the transcript. This includes notes to yourself to refresh your memory about dates and events.

During the course of a deposition, if you need a break to use the facilities, get something to drink or merely stretch your legs, you should ask for a break. It is always best to answer any pending questions before asking for a break. Most attorneys don’t like to break with a question pending. Often the court reporter will ask for a “comfort break” and save you having to do so.

Most attorneys will tell you to simply answer the question asked. So often witnesses go on and on and inadvertently disclose information that would never have been discovered otherwise. Do not volunteer information beyond what is asked. If the deposing attorney tells you to answer yes or no, remember that you have a right to explain your answer. If the deposing attorney doesn’t allow you that right, your attorney will intercede on your behalf.

Although discovery depositions cover a large scope, some questions are not appropriate. If you feel a question might not be appropriate, simply ask your attorney: “Do I have to answer that?” It’s perfectly acceptable to ask and your attorney will guide you.

Remember that “I don’t know” is a perfectly good answer. Also, if you are speculating or estimating in answering a question, it is a good idea to say: “I’m just guessing.” Once again, it’s absolutely acceptable and appropriate to say “I don’t know.”

If there are others in the room observing the deposition who may have information about what is being asked, for instance, your spouse, you are not allowed to ask them for help unless the attorneys agree it’s okay to do so. Answer the questions to the best of your ability. The attorney noticed the deposition to find out what you know and you alone.

The current climate in most situations allows you to have your social security number redacted in the actual deposition or sometimes only the last four numbers are displayed. If having it published is a concern to you, ask your attorney to have it redacted.

Occasionally, you will hear your own attorney say “Object” or “Object to form” or simply “form.” Don’t be concerned by this as your attorney is simply preserving the record. However, if it is a deposition with frequent objections, you may want to pause a moment before answering questions to give your attorney time to object so that you don’t talk over one another.

Above all, do not be intimidated by the situation. Most attorneys are not trying to trick or mislead you and are doing exactly what they say they are doing, simply gathering facts.

At the end of your deposition, you will be given an opportunity to either read or waive reading of your deposition. If you opt to waive that opportunity, you will be trusting that the court reporter took down what you said accurately. If you choose to read to be sure the transcript is correct, you will have the chance to read the depo and wil be given an errata sheet. Your attorney will explain what you should write on the errata sheet. In some states, the deposition is not ordered immediately and you will have to wait until it is backordered to read it.

Let me explain again that I am not an attorney and the knowledge I have of depostions comes solely from owning and operating a court reporting school for many years, which I sold four years ago, and from scoping and proofreading countless depositions. This article will hopefully allay some of the fear of the unknown if you’ve been subpoenaed for a deposition and have never given one. It is in no way meant as “legal advice,” but simply as a guide to make the path a little smoother.

Most depositions end with the deposing attorney saying, “Now, that wasn’t so bad, was it?” And they never are. They are simply question-and-answer sessions to gather facts.