Have you ever seen videos online of a deposition gone wrong? Lawyers in Texas going crazy on each other (https://youtu.be/G5ApXMuuG4E)? Lil’ Wayne telling a lawyer “that’s a stupid ass question” (https://youtu.be/G5ApXMuuG4E)? The videos are amusing, but they show a wasted deposition — the result of bad lawyering and a poor understanding by the lawyer and the witness of what they are there to accomplish. Depositions cost time, and they cost money. You cannot afford to waste them. So what is a deposition? What should you be trying to accomplish? How can you use a deposition to help you win a lawsuit?
A deposition is simply an opportunity to have a witness answer questions under oath. Basically, it’s like testifying in a trial, except that you are not in court. Depositions are taken ahead of time before trial begins. There will be a court reporter there who is authorized to administer oaths. The court reporter will “swear in” the witness, or have the witness promise to tell the truth. Lawyer(s) for each party (the plaintiff(s) and defendant(s)) will be present. A lawyer will ask questions of the witness, and the witness will answer. The Rules of Civil Procedure set out the rules and limitations for depositions in a lawsuit.
In any deposition, there is the party taking the deposition and there is the witness who is being deposed. For the party taking the deposition, the questions will be asked by the lawyer. For the witness answering the questions, he or she will answer directly. The witness’s lawyer, if present, may object to certain questions on the witness’s behalf.
Each party has a different goal. If you are the one taking the deposition (the one asking questions), then you will be trying to learn as much relevant information from the witness as you can. You will be trying to “lock in” the witness to his or her positions, getting the witness to tell you certain facts or establish certain opinions that the witness will not be able to back away from later. If you are the witness being deposed (the one answering questions), then you will be trying to establish credibility in your position. You will be trying to prevent the other side from using your testimony to bolster their case.
No matter what side you are on, your credibility is the most important thing. If you are a witness being deposed, the #1 rule is to always tell the truth. The most damaging thing a witness can do is lie, or tell half-truths, or otherwise try to be “clever” with how they answer questions.
Juries are great bullshit detectors. Lawyers know this. They use depositions as a way to find out how a witness might be received by the jury at trial. If a witness during a deposition is being evasive, or untruthful, then the lawyer who is taking the deposition knows that he or she has nothing to fear from this witness at trial! The jury will not like or trust the witness, so there’s no reason to worry about the witness’s testimony at trial.
Depositions are a great way to learn how the evidence and testimony will likely be received by the jury at trial. They are a great way to learn whether a witness will be credible and likeable, or untrustworthy and hated. These determinations, of course,
influence settlement values, too. If you are a witness being deposed, then, the most important thing is to tell the truth.
If you are the lawyer taking the deposition, then you must establish your credibility, too. You must establish your credibility with the witness so that the witness is willing to give you information. The witness has to trust that you are there to do your job, not to attack the witness for the fun of it. If you are cordial, professional and ask questions that are in fact aimed to get good information, the witness generally will be willing to engage with you. If you are mean, sloppy or asking questions that don’t have any real purpose other to antagonize the witness, the witness will be far less forthcoming. Just as lawyers can detect a bad witness, a witness can detect a bad lawyer.
The essential element for both sides is preparation. It is difficult to be credible during a deposition without thorough preparation. For the lawyer, he or she must know what information is needed from the witness, what questions to ask and where to go depending on how the witness answers. For the witness, he or she must know the topics that are likely to be asked, how he or she might generally respond to certain tricky questions, and how to remain calm and avoid getting too emotional or reactive in response to questions.
Depositions are too valuable to be wasted. And the surest way to waste a deposition is to show up unprepared and to allow your emotions in the moment to get the best of you. Careful preparation will make you more credible, and credibility is essential to a successful deposition.
If you have questions about deposition or any other phase of a lawsuit, feel free to reach out to a Cheney Galluzzi & Howard lawyer today! Call our law office in Denver at 303-209-9395 or contact us online. Life happens. We can help.
For example, the Colorado Rules of Civil Procedure authorize each party in a lawsuit to take a limited number of deposition. Each party can take 1) a deposition of each other party, 2) depositions of any two (2) other witnesses excluding experts, and 3) the deposition of any expert endorsed by a party. See C.R.C.P. 26, 30.
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