Deposition/Trial Preparation

What is Deposition/Trial Preparation?

A deposition is a legal term for a formal, recorded question-and-answer session between the attorneys of a lawsuit and a witness (the deponent), where the witness’s answers are given under oath, taken down in writing by a court reporter, and used by the attorneys to prepare for trial. A deposition generally serves to find out what the witness knows and preserve the testimony (sworn statement of the witness) for later use, either in motions to be filed with the court, or at trial. A deposition is usually held in a lawyer’s office in the presence of the lawyers for each side, a court reporter, and any parties to the lawsuit. Although the deposition process can appear informal, it is very important because what you say can be used against you.

What Does Deposition/Trial Preparation Involve?

Trial preparation/deposition is the collection and organization of the materials an attorney will require for a hearing or court case. In-depth trial preparation can provide a jury and judge with a complete understanding of the facts that are presented in the case. Failure to adequately research and organize the facts of a case can result in a loss in court. Trial preparation involves creating a “road map” for the entire trial. It can include an enormous array of tasks designed to find evidence in support of the client’s case, as well as evidence to the contrary. The attorneys will have to find all the witnesses who can speak to your case, all pertinent documents and evidence to strengthen the case, and sometimes experts to explain complex topics to the court. The attorney has to understand every piece of evidence, be able to call them up instantly, and know precisely how they all fit together. Detailed trial preparation today entails the use of software that can help build your story and organize your materials. The materials and personnel you will need to organize during trial preparation include:

• Pre-trial briefs and motions
• Evidence, depositions, and requests for admission
• Jury instructions to submit to the court at the start of the trial
• Direct testimony of your own witnesses, including experts
• Witnesses for cross-examination
• An opening statement that outlines the case for the jury
• Cross-examination of the opposing counsel’s witnesses
• Motions for a summary judgment or directed verdict
• Motions after testimony to the court
• Closing arguments
• A record for appeal, if necessary

What are the Best Practices to be Followed During Deposition?

A deposition is a testimony under oath, which can be used against you by the opposing attorney if you retract or change your statement during a trial. Hence, it is of utmost importance that you observe certain steps prior to testifying. These include:

• Be prepared: You should review the facts of your case with your attorney so that your memory is refreshed and you can answer correctly.
• Make sure you understand the question: If you do not fully comprehend the question that was asked, do not answer it. Ask for clarification or a rephrasing of the question.
• Think before answering: You should listen to the entire question and think it over before answering. This will make sure you do not mistakenly give away information that the other attorney was not actually asking about.
• You must tell the truth: Usually the damage caused to a client’s case by not being truthful and getting caught is far worse than the damage caused by being truthful about a weakness in the case.
• Do not guess: If you do not know the answer to a question, say so. Never guess in response to a question. It is perfectly okay to say “I do not know” if you truly do not know.
• Do not get upset or rattled: During deposition if you get upset, rattled, or argumentative in response to the defense attorney’s questions, it will have a negative impact on the case, such as regards to decisions about settlement or going to trial.
• If you do not remember a particular fact or answer to a question, say so. Do not make assumptions if you cannot recall a detail.
• Stick to your original answers: Many attorneys use the tactic of asking the same question in different ways, or repeatedly, in an attempt to get a different answer. Stick to your original answer and do not let the opposing attorney influence your testimony or put words in your mouth with this strategy.
• Silence and breaks: Occasionally, defense lawyers will purposefully use silence and breaks after you have answered a question to prompt you to keep talking or give another answer. You should disregard the silence and breaks, and merely wait for the next question.
• Review the information: Many times, photographs or documents will be used as evidence in a personal injury lawsuit and will be exhibited in your deposition. It is crucial that you do not testify about the contents of a photograph or document you are not familiar with. You must seek out the documents/photographs beforehand, and completely review them before answering any questions.
• Do not bring documents to the deposition: Do not bring a diary, notes, or other documents to your deposition that you may want to review or refer to, as they may elicit unwanted attention from the defense lawyer, who may then use them against you. To avoid this from happening, prepare for your deposition with your attorney beforehand, and do not bring documents with you to the deposition.
• Objections: Your lawyer may object to certain questions asked by the defense lawyer seeking privileged information. If this happens, wait until your lawyer is finished and only answer the question if the objection is overruled.
• Correcting mistakes: You have a right to read the transcript of your deposition and correct any mistakes. You must raise any concerns you have with your attorney on a break. After the break, you can often clarify or supplement a prior answer to the defense attorney’s questions and correct your deposition.
• Deposition questions can cover topics you find irrelevant: The subject matter of deposition questions can be very broad and seemingly unrelated to the case at hand. These questions can also be very personal and get into private and sensitive matters. If there is something in your history that is sensitive or problematic, tell your attorney ahead of time so that you are better prepared for the possibility of these types of questions.
• Stay calm and relaxed: It is important for you to stay calm and relaxed while answering questions, as being tense and confused can lead to a bad deposition. If you follow the tips above and make a good impression, you are likely on your way to putting your case in a good position for settlement or trial.