If you are going through a lawsuit, a divorce, or are part of a trial, you may have questions regarding legal terminology– such as what is a deposition. Prior to a criminal or civil trial, a deposition may be taken. A deposition is a part of the discovery process, undertaken to find out more about the case. The deposition is, essentially, a recorded statement, made under oath, in response to an oral examination. There are two basic purposes to a deposition. The first is to find out exactly what a witness or party to a case knows, and the second is to preserve that testimony. The goal is to allow all parties involved to be aware of all the facts pertaining to a case prior to trial, so there are no surprises once the witness takes the stand.
The deposition allows everyone to understand the case better. As an example, if, during a deposition, it is revealed that a witness’s version of events could be detrimental to one side or the other, there is an opportunity to prepare for rebuttal at trial. A deposition also preserves testimony so if a person changes their account of the facts at trial, the deposition can be read in order to impeach the witness’s credibility. All those involved in the case may attend the deposition, and while attorneys for both sides are present, they have a much more limited role than afforded in a courtroom. Depositions can be as short as fifteen minutes or can last a week—or even longer.
Civil and Family Law vs. Criminal Depositions
Civil, family law and criminal depositions are very different from one another. During a civil or family law case a deposition can be taken in order to discover relevant information, however, in a criminal case, a deposition normally cannot be conducted against the defendant. It would more likely be used to explore testimony from a witness, or used to explore potential testimony of police officers. Exceptional circumstances must be present and the interests of justice served in order for a court to allow a criminal deposition of the defendant. Civil depositions—out-of-court oral testimony, transcribed in writing for the purpose of gathering evidence and later used in court—are much more common than criminal depositions. Civil depositions are used for such legal issues as injury claims, malpractice claims and divorce proceedings.
Where Will My Deposition Take Place?
Depositions are generally taken at the law office of the opposing attorney who is deposing you, but can also be taken in a neutral office space provided by another attorney or business person. Most criminal depositions are conducted in the office of the State Attorney. The deposition is preserved by a court reporter who later provides a complete transcript of the deposition. In some instances, a deposition may be videotaped. Depositions can be anxiety-producing and stressful and are likely to be anything but fun. Being prepared for your Florida deposition can go a long way toward easing your nerves. If you have all the information you need and you understand the steps involved in a Florida deposition, the process is likely to be smooth and uneventful. At the beginning of your deposition, you will be asked several questions such as:
- Do you understand you are under oath?
- Do you understand your answers are being recorded by the court reporter?
- Do you understand you must answer each question out loud (nods cannot be recorded), and should answer with a “yes,” or “no,” rather than the slang “yeah,” or “nope?”
You should also be told you will have the opportunity to make corrections once the transcript is prepared, however, if you change an answer from “yes” to “no,” opposing counsel can comment on that change at trial. While no one is expected to remember every single detail, accuracy is extremely important during your deposition. It is also extremely important during the trial. If your statement varies from your deposition while you are on the stand, the opposing counsel will likely use that to damage your credibility or cloud the jury’s mind with doubt.
Can My Attorney Object to a Question?
While objections by the attorneys can be made, in general, the person being asked the questions must answer and must do so truthfully. False statements made under oath can result in civil and criminal penalties. That being said, your attorney may make a “form objection.” A form objection is usually made to challenge the manner in which the question is posed, rather than the question itself. Ambiguous questions, questions that ask about more than one thing at a time, leading questions, argumentative questions, speculative questions, or questions that assume facts that have not been established may all result in a form objection. In some instances a form objection allows your attorney to tell you—without telling you—to be very careful when answering the question being asked.
There are rare circumstances that could warrant an attorney terminating a deposition. Florida Rule of Civil Procedure 1.310(d) states “At any time during the taking of the deposition…upon a showing the examination is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass or oppress the deponent or party…the court may limit the scope and manner of the deposition.” Further, if an attorney believes the information sought from the witness would be irreparable if revealed by the witness, he or she may suspend the deposition and file a motion for a protective order under Florida Rule of Civil Procedure 1.280(c).
What Questions Will I Be Asked During the Deposition?
Of course, the questions you will be asked are dependent on the specific circumstances of your case as well as the type of case. You will first be asked about your background, which will include questions about your personal and educational history. You will give your name and address, possibly your birthdate, then may be asked questions such as when you graduated from high school, did you go to college, do you have a degree and other questions regarding your educational background. You may be asked where you live currently, how long you have lived there, whether you own or rent your home, and who you live with. You might be asked if you have been married before, where you lived prior to your current residence and for how long. You could be asked a series of questions regarding employment, both concerning your current employment as well as past employment. You could even be asked why you quit a particular job.
If your case involves an auto accident or work accident, you will be asked to provide a detailed description of the accident as well as of your injuries. You could be asked whether you went to an ER or other medical facility, how long you were off work because of the injury, and questions regarding your current medical treatment plan. You may be asked to rate your pain on a scale of 1-10 (with 10 being worst) or to describe your pain in words (stabbing, throbbing, burning, chronic, shooting, etc). You may be asked to describe how your injuries impact your day-to-day life. Usually, your deposition questions will proceed in chronological order, i.e. from the time your accident occurred to the present. You may also be asked to identify, explain or authenticate specific documents.
Preparation for Your Florida Deposition
If you have not already done so, the first thing you will want to do is set up an appointment with your attorney prior to your deposition. This meeting gives you the opportunity to ask questions regarding your deposition and get an idea of the types of questions you may be asked. If you have answered written questions pertaining to your case—known as interrogatories—you will want to review these with your attorney and become familiar with the answers you provided. Credibility is key during a deposition. If you fail to tell the truth or you make an inconsistent statement, count on being held accountable during your trial. You do not want to be reminded that you said something different during your deposition and asked if you are lying by opposing counsel. In addition to ensuring your answers are truthful and consistent, you should also consider the following tips for making your deposition go more smoothly:
- If your deposition is in relation to an accident, consider driving by the location where the accident occurred or refreshing your memory in some way about the location.
- If there was a crash report involved, review it, and take note of all the facts.
- Refresh your memory regarding the condition of the road, the time the accident occurred, the weather, etc. if your deposition is for an auto accident.
- Make sure you are familiar with all the details before you are asked questions under oath.
- Expect some hard questions.
- Get a good night’s sleep before deposition day—it is crucial you be alert and well-rested.
- Keep your answers as short and simple as possible.
- Be polite, and refrain from being argumentative or defensive.
- If the question is a “yes” or “no” question, simply answer yes or no without further elaboration.
- If you don’t remember the answer to a question, say you don’t remember rather than guessing.
- Think before you speak.
- If you don’t understand the question, ask for clarification.
- Make sure your attire says you are taking the deposition seriously.
- If you need to take a break, ask for one.
- Answer fully if you are asked for a comprehensive answer to a question.
- Never volunteer information.
- Never discuss anything during a break with anyone other than your own lawyer, and always out of the hearing of others.
- You have the right to speak with your attorney privately at any time during the deposition regarding a question and your answer. But your attorney is normally prohibited from instructing you how to answer a specific question.
- Try not to estimate distances or time, however, if you must, make it clear your answer is an estimation.
- If you are relaying something someone else said, distinguish between whether you are paraphrasing or quoting directly.
- You cannot use notes or other documents to assist you during the deposition unless they are approved by your attorney.
- Wait until the attorney finishes asking the question before you answer—in other words, don’t try to anticipate the question. Listen, understand, consider your answer, then answer.
- If you realize you have given an answer which is wrong, or even not totally right, correct your mistake immediately by saying you misspoke or made a mistake.
- Don’t make jokes during your deposition as they could be taken wrong (particularly in the transcript of the deposition), making you appear untruthful.
- Don’t let opposing counsel get you angry or excited as you could say things that could be used to your detriment later on.
- When the deposition is over, don’t stay and chat with those on the “other” side. Opposing counsel is not there to help you, but rather is there to help his or her own client—at your expense if necessary. Don’t drop your guard and become “chatty.”
Your Deposition is Not Your Opportunity to “Tell Your Story”
Many people actually look forward to a deposition, believing they will finally have the opportunity to tell their side of the story. It is important to realize this is not your “day in court.” In fact, the exact opposite is true, as a deposition is not your story, but rather a question-and-answer session orchestrated by opposing counsel. Since opposing counsel is not your friend, assume he or she has a goal of learning information about your case to use against you later. The opposing counsel wants to know what you know, wants to pin you down to a specific story, and hopes to get lucky enough to catch you in a lie, thereby destroying your credibility at trial. You will have your opportunity to tell your story at trial, so keep your answers short, concise, and truthful during the deposition. Keep in mind at all times that your deposition is a very serious event and can have a significant bearing on the outcome of your case. Make sure you are confident in your ability to answer questions regarding your case and discuss any concerns you may have with your attorney before the day of the deposition.