What is a Deposition?
By David Allen
If you find yourself involved in a lawsuit, either as a party plaintiff, defendant or as a material witness, it very likely that at some point during the course of the case, you will be asked to submit to a deposition. Being told that your deposition has been scheduled may elicit the same reaction as your dentist telling you that you need a root canal, or the IRS notifying you that you are about to be audited. In truth, however, depositions need not be scary or painful, as long as you understand what it is, how it works, and, most importantly, how to conduct yourself when being deposed.
So what is a deposition?
It is a time when the attorneys have an opportunity to ask you questions relating to the case, and you have to provide answers after having taking an “oath” agreeing to testify “under penalty of perjury.” The “oath” is administered prior to the commencement of the deposition by the court reporter, and is the same oath that is administered to witnesses who are called to testify in court (“Do you, Joe Jones, swear to tell the truth, etc.). Once the person being deposed – referred to as the “deponent” – agrees to the oath, they are then subject to potential civil and criminal “penalties of perjury” if it is later determined that they have willfully lied in responding to deposition questions. Beyond that, however, the environment, which is usually a conference room in the attorney’s office, is informal, and there is no judge present to preside over the deposition.
Once the deposition starts then, how does it work?
Much as you would expect, the deposition proceeds with questions being asked by the attorney conducting the deposition, and with answers being given by the deponent. The non-questioning attorneys, including the attorney representing the deponent, may interject certain allowable objections; however, as there is no judge present to rule on the objections, they are just made “to preserve the record” should the case proceed to trial. On rare occasions, if there are objections or other disputes that require an immediate resolution, most judges will accept telephone calls, and subject to their availability, will resolve such disputes via teleconference during the deposition.
The biggest mistake that many deponents make is that rather than just responding to the questions being asked of them, they attempt to use the deposition as a platform to “tell their side of the case.” The reason that this is a mistake, and should not be done, is very simple. If the deponent says something that is unfavorable for their position, the questioning attorney will be able use that testimony at trial to their advantage during the cross-examination of the deponent at trial. On the other hand, if the deponent says something that is favorable for their position, it will never be used at trial, either by the questioning attorney because it does not help his case, or by the deponent’s attorney, because that favorable testimony will instead be presented “live” at trial, and not through a deposition.
One thing for a deponent to remember...
Always tell the truth, as it always comes out the same, and to only answer the questions that they are asked, without volunteering anything further, no matter how “helpful” they think any such additional information may be. Following those simple rules will make the deposition experience run smoothly.
About the Author: David Allen, a partner in the Phoenix law firm of Jaburg & Wilk, has been representing clients in both transactional and litigation real estate and business related matters for over thirty years. He is licensed as an attorney in both Arizona and California, and is also a licensed Arizona real estate broker. He can be reached at 602.248.1082 or at firstname.lastname@example.org.
This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona. Always consult an attorney for legal advice for your particular situation.