Appendix A — Client Deposition Instructions
Appendix A — verbatim client deposition instructions an advocate can hand a deponent witness, walking through what a deposition is, how it proceeds, and how to conduct oneself across procedures, conduct, question types, responses, objections, and exhibits.
Appendix A
Client Deposition Instructions**^[1]^***
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Your deposition will soon be taken. These instructions describe what a deposition is and explain how to conduct yourself, and will answer most of your questions, Please read them carefully, and if you have any questions, contact me.
Your deposition has been scheduled for [date/time] at [place]. To prepare for your deposition, please meet me at _______ on [date] at [time]. If you have a conflict, immediately phone______ or text ______ or email _______.
CONTENTS
A. Deposition Information
B. Procedures
C. The Beginning
D. Conduct
E. Types of Questions
F. Specific Questions
G. Responses
H. Objections
I. Documents and Exhibits
J. The Conclusion
A. Deposition Information
Q: What is a deposition?
A: A deposition is a “discovery” method used by another attorney to obtain information about your case. It is part of the investigation conducted by the opposing or another party.
Q: What happens during my deposition?
A: An attorney asks you questions, which you will answer to the best of your ability and recollection. Your lawyer may ask you questions. You’ll take an oath or affirmation to tell the truth.
Q: Who is a deponent?
A: A deponent is a person who gives information by answering questions. The “deponent” is really the same as a “witness.”
Q: Why is my deposition being taken?
A: So the attorneys learn what you know and don’t know about the case and what you would say if you were to testify in a future trial, hearing, or arbitration.
Q: Why else am I being deposed?
A: The other attorney is also interested in figuring out how believable a witness you are and how credible your story is.
Q: How does the attorney do that?
A: By learning how good your memory is and observing how well you answer questions.
Q: What rules govern the deposition?
A: Rules of civil procedure govern what happens.
Q: How are my answers going to be used?
A: They become evidence. Often, they help settle your case so you don’t have to testify again later.
B. Procedures
Q: Do I have to attend the deposition?
A: Yes. A notice of your deposition has been served, and you must attend. It may be possible for the time and date of your deposition to be changed, which you can discuss with your lawyer.
Q: How long does a deposition take?
A: That depends on the particular case and the attorney asking the questions. It may last half a day, or a couple of hours, or a full day. The deposition rules limit the length of your deposition to a reasonable time and presumptively no more than one day with up to seven hours of testimony, although the court may order additional time if circumstances justify. Your lawyer can estimate the time of your deposition. Your schedule should be arranged so that you will not be rushed to testify.
Q: Will there be any breaks during the deposition?
A: Yes. There will be breaks during the deposition, depending on its length. You should be as comfortable as possible at all times. If you need a break during the deposition, let your lawyer know.
Q: What if I have some physical issues?
A: Before the deposition, tell your lawyer about any physical conditions you have that require attention.
Q: Will I be allowed to drink water during the deposition?
A: You will usually be allowed to have water or a refreshment. Eating is generally not permitted, but you may snack or eat lunch over a break.
Q: Will I get reimbursed for lost wages or transportation expenses?
A: Not usually. You’ll have to bear those costs. An expert or independent witness may be reimbursed some expenses.
Q: What should I wear to the deposition?
A: You should present your best appearance. Dress as if you were going to appear in court and wear neat and comfortable clothing. Your lawyer may give you specific advice on your appearance.
Q: Where will the deposition take place?
A: It typically takes place in an informal setting, probably in the conference room of the examining attorney’s law office or in your lawyer’s office. You will be told the exact location.
Q: Will there be a “deposition room”?
A: The room will usually be a conference room or office. There’ll be a table and several chairs around the table. You’ll sit in one of the chairs next to your lawyer, and other people will sit around the table.
Q: Who will be present during my deposition?
A: Your lawyer will be there with you, and counsel representing the party or parties in the case will also be there, and a person called a “reporter” who will record what happens, and maybe someone assisting the reporter.
Q: Will there be anyone else present during my deposition?
A: Ordinarily not. Sometimes parties or other persons will be there.
Q: Can I bring anyone with me to the deposition?
A: Not usually. Ask your lawyer if you want someone else to attend, and you’ll be told who may come to the deposition.
Q: Can I object to the presence of someone at the deposition?
A: If you don’t want someone to attend, tell your lawyer.
Q: Is the deposition conducted like a trial, hearing, or arbitration?
A: Not exactly. There will be no jury, judge, or arbitrator present, but you will be answering questions under oath in about the same way you would during a trial or hearing. It’s important to remember that your deposition testimony can be used later in court or an arbitration. Don’t let the informal setting make you less careful answering.
Q: Will my answers be recorded?
A: Yes. All testimony during the deposition will be recorded. The “reporter” will record everything you and everyone else says on a stenographic machine or by an electronic recorder or on video. This testimony may later be “transcribed” (in a booklet form or a computer file) by the reporter, with copies made available to counsel. There may be times when somebody says, “Let’s go off the record,” and if you see the reporter stop, then that means no record is being made.
Q: Why would my deposition be recorded on video?
A: Video depositions are common. Often, counsel believe it’s better to record what you say and how you say it, just like you would testify in a trial or hearing. Your lawyer will tell you if your deposition will be video recorded. If the deposition is being recorded, remember to comport yourself as if you were in court so that judges or jurors seeing the video do not get any negative or misleading impressions.
Q: Is everyone in the same room for the video deposition?
A: Some remote depositions will be conducted with the participants in different or distant locations. The procedures will largely be the same. Your lawyer will explain the details.
C. The Beginning
Q: How does the deposition begin?
A: The reporter will ask you to raise your right hand and take an oath or affirmation to tell the truth. After the oath or affirmation has been administered, the other attorney will usually explain deposition procedures and then begin the questioning.
Q: What deposition procedures will likely be explained?
A: The attorney may explain that if you do not understand a question, you should say so. You do not want to answer a question unless you understand it. The attorney may also explain that only one person can talk at the same time, and that you have to speak out loud and not talk too softly. This will help the reporter or camera accurately record what you say. And you may be reminded to tell the truth.
D. Conduct
Q: How should I conduct myself during the deposition?
A: Listen carefully and answer the questions. Don’t interrupt anyone else talking. Remain polite and calm. Don’t become angry or upset. Be courteous, but don’t be overly friendly with the other attorney.
Q: What if I am nervous?
A: You probably will be somewhat nervous and anxious. That’s normal, but try and calm yourself so that you testify accurately. The information you give is important, and equally important is the impression you make.
Q: Whom should I look at when I give my answers?
A: You should ordinarily look and talk to the attorney when asked questions.
Q: How should I answer?
A: Make certain you speak clearly and loudly enough so what you say is recorded accurately. Don’t nod your head or use facial expressions or gestures to respond.
Q: Should I act any differently at a video or remote deposition?
A: The video camera records what you say and how you say it. Act as if you were in a court or hearing room. You may be asked to look at the camera. Your lawyer will advise you.
Q: What should I do if I don’t understand something that has happened during the deposition?
A: Turn to your lawyer and ask what happened.
Q: May I speak to my lawyer in private during the deposition?
A: Maybe. If at some point you’re confused, ask to speak to your lawyer. But you should avoid overdoing this. It may look like you and your lawyer are planning your answers. There is also a practice in most cases that witnesses will not confer with counsel when there is an unanswered question pending. If you are unable to understand a pending question or are unclear about answering, ask the deposing counsel to clarify. If you are still unsure or unable to answer, you may ask to consult counsel.
Q: Is it permissible for me to talk to my lawyer during a break in the deposition?
A: Usually, yes. If you have some questions or concerns at these times, you should discuss them with your lawyer. But be careful not to talk too loudly, or other people may overhear you.
Q: Will I be told anything about the attorney who will ask me questions?
A: Yes. Your lawyer will discuss with you the type of questioning typically conducted, and may tell you something about the attorney’s personality and approach.
Q: Should I answer differently if the attorney is friendly or hostile?
A: No. Don’t be disarmed by friendliness or intimidated by unfriendliness. Focus on telling your story and the truth. The examiner will not have your best interests in mind because that attorney doesn’t represent you.
E. Types of Questions
Q: What kinds of questions will the examining attorney ask me?
A: You will generally be asked questions about what you know and what happened, and may also be asked about your personal history and background.
Q: Must I answer every question?
A: Yes, unless your lawyer objects, or unless you don’t know or remember the answer. Don’t answer any question unless you understand it and now the answer.
Q: What if questions about my personal life are private?
A: The law usually allows the other attorney to ask you some questions about your personal history and background because it may have some significance to the case. If seeking this information is improper, your attorney will object.
Q: Do I have to answer hypothetical or “possibility” questions?
A: No. The other attorney may ask you “what if” questions, or “assume” questions: “What if this happened?” or “Presume that happened?” You do not have to answer hypothetical or possibility questions, and you should not guess at answers. You can say you can’t answer or don’t want to guess.
Q: What if I’m not asked questions I think are important?
A: Do not volunteer facts or answer questions you have not been asked. It’s common for a deponent to want to say more, but don’t add more than the question calls for. Keep your answers responsive and short. Your lawyer can later ask you to explain more. For example:
Q: Where do you live?
A: I live at 1934 Suburban Avenue. We have 3 children. I work at Forthright and my spouse works at Mounds Park Hospital.
Since you were only asked where you live, you should simply give the address and that’s all. If the attorney wants more information, you’ll be asked for it. If you continue giving details you haven’t been asked about, the deposition will be prolonged.
Q: What if I’m asked a question that will hurt the case if I answer it?
A: You must tell the truth, regardless of whether your answer will hurt or help the case.
Q: Will questions be asked in some sort of order?
A: Different attorneys ask questions differently. Some follow a pattern, others skip around. If you pay close attention, you should be able to answer the questions.
Q: Will I be asked any trick questions?
A: If an attorney tries to trick you, your lawyer will protect you. If a question doesn’t make sense, say so and don’t answer it.
Q: Will more than one attorney be asking me questions?
A: Typically, one deposing attorney asks all or most of the questions. If there are other parties in the case, their counsel may ask you questions.
Q: Will my lawyer ask me questions during the deposition?
A: Your lawyer may or may not ask you questions after the other attorney has finished. You may be asked to clarify your answers or provide more information. This is why you need not volunteer testimony.
F. Specific Questions
Q: If I am asked, “*Did you talk to your lawyer before coming to this deposition?” *what should I say?
A: The truth: Yes. There is no reason for you to hide the fact that you talked to your lawyer. That’s a common and acceptable practice.
Q: What if the other attorney asks, “Did your lawyer tell you what to say at this deposition?”
A: Your lawyer will not tell you what to say. Your lawyer will tell you to testify truthfully and to the best of your ability and knowledge. Your lawyer will prepare by reviewing what you know in order to help your memory and by referring to relevant documents and materials.
Q: What if I’m asked, “*Do you realize you are testifying under oath?” *or “Is that really your sworn testimony?”
A: Some attorneys may try to intimidate you or try to insinuate you are lying. These tactics are usually ineffective. Answer questions honestly to the best of your ability. Your lawyer will protect you.
Q: Will I be asked if anyone ever sued me or if I was ever a party before?
A: Maybe. Answer truthfully. And tell your lawyer before the deposition.
G. Responses
Q: How should I answer questions?
A: You have to answer honestly. Here are three important tips:
1. Listen to the question carefully. Be sure you understand it before you respond.
2. Answer the question asked. Be concise. Don’t ramble, and don’t volunteer information.
3. Don’t guess about an answer. Take a moment to think about whether you really know the answer. If not, say so.
Q: How should I speak?
A: Speak clearly and out loud. You can speak as you normally do as long as you don’t speak too fast, slow, or softly.
Q: Can I ask questions directed to the other attorney?
A: No. Don’t ask a question of the other attorney, or in response to a question.
Q: What should I do if I didn’t hear a question?
A: Say you didn’t hear the question. The attorney or reporter will repeat the question.
Q: What happens if I don’t understand a question?
A: Say you don’t understand. Only answer if you understand the question. Remember you don’t have to answer a question you don’t understand.
Q: What if I don’t understand some of the words used?
A: If a word is used you don’t know, say so. Don’t pretend you understood a word, and don’t bluff your way through an answer.
Q: Would it be a good idea for me to memorize my testimony so I won’t forget what to say?
A: You are usually better off telling your story as you normally would. You don’t want to sound like you memorized your testimony. Your lawyer will prepare you and suggest ways to help you tell your story.
Q: Should I conceal any information?
A: No. Give complete and honest answers. Don’t withhold important information, and do not volunteer additional information.
Q: Can I explain my answers?
A: If you are asked to. If the question asks what you did, describe that. If the question asks you why you did something, explain that.
Q: Will I be asked yes or no questions?
A: You’ll be asked some questions that may require a yes, no, or I-don’t-know response. Answer if you can. If you can’t answer a question that way, don’t answer it and say you can’t.
Q: What if the other attorney insists on a yes or no, or other answer?
A: You cannot be forced to answer a question you can’t answer. You can say: “I can’t answer yes or no”, or “*I can’t answer that way.” *Your lawyer will help and protect you.
Q: What if the attorney interrupts my answer before I’m done?
A: Your lawyer will recognize you haven’t been permitted to complete your answer, and may decide that your interrupted answer is sufficient and do nothing, or may ask you to complete your answer.
Q: When should I complete an answer?
A: If your uncompleted answer is important, your lawyer may have you complete it then or ask you later to finish it.
Q: What if I don’t remember, or I’m not sure about an answer?
A: There is nothing wrong with an answer that says: “I don’t remember,” or “I don’t know,” or “*I can’t recall.” *You will not be expected to remember everything. You should say only what you recall. If you don’t remember something for certain or completely, you should say so. If you can give a reasonable approximation, you may do so.
Q: What are some examples?
A: For examples:
If you’re asked questions about what someone said, and you don’t remember exactly what was said, you can say: “I don’t remember the exact words, but the person said something about. . . .”
If you are asked about time, speed, or distance, and you’re not certain but can make a reasonable estimate, then you may respond: “About one hour,” or “Around 30 miles per hour,” or “I am not sure, but I would estimate. . . .”
If you can’t make a reasonable approximation or a reliable estimate, or you do not recall the specific facts, say so.
Use your best judgment. Do not guess or speculate about something. Only offer information you recall. If the other attorney insists on an answer, and you can only guess or speculate, say you can’t answer.
Q: Should I give my opinion about something?
A: If you are asked for your opinion, you may give it, unless your lawyer objects. If you are not asked, don’t volunteer your opinion unless needed to complete an answer.
Q: What if the other attorney is dissatisfied with my answer?
A: You are there to tell the truth, not to satisfy others. The examining attorney represents another party, and your information may not be favorable to them.
Q: What if I realize during the deposition that I’ve given an incorrect or incomplete answer?
A: Consult with your lawyer. It’s usually more important to correct an answer than it is to leave an incorrect response. The other attorney may try to discredit you. Your lawyer will know what to do.
Q: What if I feel during the deposition that things aren’t going well or that the other attorney is taking advantage of me, what should I do?
A: While you may have some concerns, your lawyer may be satisfied with what’s happening, or will intervene if necessary. If you feel strongly that something is wrong, then speak privately to your lawyer.
H. Objections
Q: What is an objection?
A: If the other attorney asks you a question and your lawyer considers that question improper, your lawyer will say “Objection,” or words to that effect. That word is a signal to you not to answer the question.
Q: What should I do after an objection is made?
A: Remain silent until you are told to answer or another question is asked. Don’t volunteer to give an answer when your lawyer makes an objection.
Q: Why do lawyers object?
A: A lawyer objects because the question or the expected answer may be irrelevant or unnecessary. The objection is a way your lawyer can complain and disagree with a question or what the other attorney is doing.
Q: Will there be many objections during the deposition?
A: Usually not. You’ll usually be asked questions that are proper for the deposition, but may not be proper for the trial or hearing. If those questions were later asked in court or at an arbitration, your lawyer might object. But during a deposition, there may be no objections because the law allows those questions to be asked.
Q: Why should I answer if there is an objection?
A: Your lawyer may object and state a reason, and then tell you to answer the question, or the examining attorney may insist you answer. The rules likely require you to answer even after an objection.
Q: How should I respond after an objection?
A: Listen carefully to the objection because it may give you a clue. It may let you know that you can’t respond. An objection that the “question is vague” suggests you may not be able to understand it. An objection that the question calls for “speculation” is a tip to ask yourself: “Am I guessing or do I really know that?”
Q: What if I think a question should not be answered but my lawyer doesn’t object?
A: Answer the question. Your lawyer will know when to make objections. You may not understand why the attorney has asked the question, but you should answer unless there is an objection. If you believe there is no reason at all to answer a question, you might consider conferring with your lawyer.
Q: Are there other kinds of objections my lawyer may make?
A: Yes, your lawyer may instruct you not to answer a particular question. If so, refuse to answer it. If the other attorney asks you whether you will answer the question, say that on the advice of your lawyer you will not answer the question. These do-not-answer directions preserve privileged and confidential information from being disclosed.
I. Documents and Exhibits
Q: Will I have to examine any documents?
A: In most cases, there will be documents. When a document is handed or shown to you, don’t start to answer until you are familiar with it*. You *can review and examine it. Take the time you need to adequately review a document and don’t let the examining attorney rush your review.
Q: Will I have seen those documents before the deposition?
A: Most likely. Some of these documents you may have given to your lawyer, or your lawyer will show others to you during preparation for the deposition.
Q: Will I be asked to identify other materials or things, like emails, texts, messages, websites, files, photos, or objects?
A: Yes, if relevant to your case. Before answering, review the materials carefully. If you can’t identify all or part of an exhibit, say so.
Q: What is an exhibit?
A: The documents and any materials are marked and called exhibits during the deposition.
Q: If I’m not shown a document, may I ask to look at it before answering?
A: If the attorney asks you a question about a document, you can ask to see it before you answer. If you don’t recall an answer, but know a document contains the answer, say so.
Q: Will my lawyer bring any documents to the deposition?
A: Your lawyer may have relevant documents for you to identify or materials to refresh your memory, and will introduce these documents if needed.
Q: Should I bring any documents or anything with me?
A: Your lawyer will advise you. You can suggest some documents or materials to bring.
Q: Can I bring along my laptop or smart tablet?
A: Not unless your lawyer advises you to do so.
Q: May I bring anything else with me?
A: No. Don’t bring anything to the deposition with you unless told to do so by your lawyer. If you bring anything into the deposition room, the other attorney may want to look at it.
Q: What should I do if the other attorney asks me to provide documents or look up some facts?
A: Don’t agree unless your lawyer tells you it’s ok to do so.
Q: Will I be asked to make a drawing or diagram during the deposition?
A: Maybe. You should prepare for this by practicing and making some sketches before the deposition. You will not be expected to prepare an artist’s drawing or draw something to scale. When your lawyer prepares you, you may practice a sketch at that time.
J. The Conclusion
Q: Will that be all?
A: One deposition is usually adequate.
Q: What happens to the record of my testimony after the deposition?
A: The reporter will prepare a transcript of the testimony if one of the counsel requests and any video recording will be preserved.
Q: Can I see the transcript or the recording?
A: You’ll have an opportunity if your lawyer thinks it advisable to review it after the deposition. Your lawyer will know what to do if the deposition is inaccurate and any changes need to be made. You may be asked to read the transcript, or review it and sign it.
Q: Will a deposition be taken from anyone else connected with this case?
A: Usually. Your lawyer and other attorneys may take depositions of other parties or witnesses in the case.
Q: Does the taking of my deposition at this time mean the case is soon going to trial or a hearing?
A: Probably not. You’ll be advised about an expected trial or hearing date, or the timing for settling the case. Cases can go on for a long while, before they finally get resolved.
Q: What if this case goes to trial or arbitration? How is my deposition used?
A: Statements you make during a deposition may be evidence used to support a legal claim or defense. It may also be used to “impeach” you: that is, other evidence may show you said or did something else which is inconsistent with your deposition testimony. If your testimony later differs from your testimony during the deposition, the other attorney may be able to point out the inconsistency to the judge, jury, or arbitrator. Your deposition could also be used instead of your live testimony, if you are later unavailable.
Q: I hope I do pretty well during my deposition.
A: It’s normal to be anxious before the deposition, but most people overcome their anxiety as the deposition proceeds. If you listen carefully to the questions and tell the truth, you will have done your best. Some things may happen or be said that concern you. Your lawyer will prepare you and will be there to protect you. You likely will find your deposition to be an interesting and challenging experience.
- Some ideas appearing in this appendix were adapted with permission from the copyrighted publication, About Your Deposition: 95 Questions and Answers from The Lawyers and Judges Publishing Co., www.lawyersandjudges.com. ↑