So I was talking to a client about his lawsuit. \u201cYeah, they want a response to their settlement offer,\u201d I said, \u201cor if we\u2019re not going to settle, they want to schedule your deposition.\u201d<\/p>\n
\u201cWhat\u2019s a deposition?\u201d he said.<\/p>\n
That\u2019s like asking a football coach, \u201cwhat\u2019s a first down?\u201d If you work in litigation, like I do, it\u2019s an obvious thing.<\/p>\n
But in fairness, if you don\u2019t have experience with litigation, you might have no idea. Or even if you know what a deposition is, like from watching Suits<\/em> or something, you probably don\u2019t really know how it works.<\/p>\n I will now fix that problem.<\/p>\n But a disclaimer: this is not a \u201chow to testify in a deposition\u201d post. I\u2019ve covered that in other posts, like Is \u201cJust Answer the Question\u201d Good Deposition Advice?<\/a><\/p>\n Here, I\u2019m just going to explain what a deposition is and how it works.<\/p>\n For simplicity, I\u2019m going to assume that you are a defendant in a lawsuit. In a deposition, the plaintiff\u2019s lawyer will ask you questions, you will answer the questions under oath, and a court reporter will transcribe everything.<\/p>\n Your lawyer will be there sitting next to you. The plaintiff or the plaintiff\u2019s representative may be there. Other lawyers for the plaintiff may be there, but typically only one of them will ask the questions. There may be someone there to video the deposition.<\/p>\n Sometimes the opposing side will have a big group show up at the deposition to try to intimidate you. If so, just tune them out and focus on the lawyer asking you the questions.<\/p>\n Anything and everything he can think of. The questions should all be relevant to issues in the lawsuit, but be ready for a lot of pointless questions. Most of what the lawyer asks you will probably never be used for anything in the lawsuit. This is just the way most lawyers learn to do it.<\/p>\n I mean, there may be that one case out of a thousand where the answer to \u201chow many times did you meet with your lawyer\u201d blows the case wide open, but I still haven\u2019t seen it.<\/p>\n There\u2019s not a whole lot your lawyer can do during the deposition. You can\u2019t stop ask your lawyer how to answer a hard question. (Pro tip: if you\u2019re having trouble answering a question, that\u2019s probably a sign that either you don\u2019t understand the question, or the answer is \u201cI don\u2019t know.\u201d)<\/p>\n Your lawyer can object to questions. In Texas, where I practice, your lawyer will say \u201cobjection, form\u201d if she doesn\u2019t like a question, but you still answer the question after she makes the objection. Your lawyer is just making the objection for the record, and there\u2019s no judge there to rule on the objection. This will be awkward at first, but you\u2019ll get used to it.<\/p>\n In rare cases, your lawyer may instruct you not to answer a question, such as when the question is harassing or pries into something privileged (like attorney-client communications).<\/p>\n The grey area is a question that is not \u201charassing\u201d in some obvious way, but arguably irrelevant to the issues in the case. Depending on how out of bounds the question is, it could be considered harassing.<\/p>\n But you don\u2019t need to worry about that. Even if the lawyers get into a heated argument about an instruction not to answer, you should follow your lawyer\u2019s instruction.<\/p>\n Unless you are smarter than your lawyer and know more about how to handle litigation, in which case, have at it.<\/p>\n Yes, you are allowed to talk to your lawyer privately during breaks in the deposition, and you should. Your lawyer will probably use this as an opportunity to remind you of the tips you were given before the deposition and forgot about.<\/p>\n When you come back from the break, the other side\u2019s lawyer may ask you, in an accusatory tone, who you talked to during the break. Don\u2019t worry. Just say \u201cI talked to my lawyer.\u201d You didn\u2019t do anything wrong. And you can\u2019t be asked what you talked to your lawyer about, because that is covered by attorney-client privilege.<\/p>\n But be careful. You should avoid talking to someone who isn\u2019t your lawyer during a break. That conversation may be free game.<\/p>\n A deposition can be taken pretty much anywhere the parties agree on, but usually it will be in a conference room in a law firm office. Typically, it will be at the law firm that represents you, but that\u2019s more by custom than by law.<\/p>\n It can also be taken remotely (by Zoom for example), which has become more popular since Covid. The advantage of a remote deposition is that you don\u2019t have to pay $39 to park in some downtown office building.<\/p>\n In most cases, the deposition will start in the morning and take up a whole business day. Usually the questioning lawyer gets 6-7 hours of time \u201con the record.\u201d Sometimes it won\u2019t take that long, but you should be prepared for it to go all day.<\/p>\n Don\u2019t schedule anything for after the deposition. The last thing you want during a deposition is to stress about whether you\u2019re going to make it to Chuck E. Cheese for your kid\u2019s birthday party that evening.<\/p>\n What is the point of it? This is the hardest question. To understand the reasons, let\u2019s start with how the deposition will be used.<\/p>\n There are essentially three ways a deposition can be used.<\/p>\n First, it can be used as evidence<\/em> at a trial. When a deposition is offered as evidence in a trial, it\u2019s essentially just like live testimony. (In Texas, where I practice, the state court rules allow using a deposition in a trial pretty much at will; the federal court rules are a little more restrictive.)<\/p>\n Second, a deposition can be used to impeach<\/em> your testimony at trial. Impeachment is a fancy word, but basically it goes like this. \u201cMr. Defendant, isn\u2019t it true you called Mr. Plaintiff a good-for-nothing fraud?\u201d \u201cNo, I don\u2019t think I called him that.\u201d \u201cBut that\u2019s not what you said in your deposition, is it? Let me show you . . .\u201d You get the idea.<\/p>\n Third, a deposition can be used as evidence in pretrial hearings. In particular, it can be used as evidence to support or oppose a motion for summary judgment, which is a motion asking the judge to dismiss the case (or part of the case) without a trial.<\/p>\n Your job is not to win the deposition. As a general rule, there is no \u201cwinning\u201d the deposition when you are the person being deposed. The goal is to not lose<\/em> the deposition.<\/p>\n To put it another way, nine times out of ten, the things you say in a deposition will only be used against<\/em> you. In most cases, you\u2019re not going to use your own deposition to prove your case. (There are exceptions.)<\/p>\n With this background in mind, you can better understand what the lawyer is trying to accomplish in your deposition.<\/p>\n Let\u2019s focus on three common things.<\/p>\n First, the lawyer simply wants to know what you have to say and not be surprised by it at trial. In other words, the lawyer wants to \u201cget your story,\u201d whatever it is, and \u201cpin you down\u201d on your position on key issues. For this purpose, it doesn\u2019t really matter to the lawyer what you say, she just wants to know what you\u2019re going to say.<\/p>\n The second purpose of a deposition is a little different. The lawyer also wants to get you to admit things she can use against you. For this purpose, the lawyer cares a lot how you answer the questions, and will try to get you to answer the questions in a way that helps her case.<\/p>\n Third, let\u2019s not forget old fashioned harassment and intimidation. To use a technical term, in most lawsuits the plaintiff is pretty pissed off at the defendant (and vice versa). The deposition is the opposing party\u2019s chance to put you on the \u201chot seat\u201d and make you squirm.<\/p>\n Related to this, the deposition is also an opportunity for the other party\u2019s lawyer to show off and look tough in front of his client. That sounds kind of juvenile, I know, but believe me, it\u2019s pretty common, even with big corporate clients, who are supposedly more \u201csophisticated.\u201d It might even be more<\/em> common with that type of client.<\/p>\n When that happens, you may be tempted to \u201cduke it out\u201d with the lawyer taking the deposition, but you need to resist that temptation.<\/p>\n Think about it this way. Imagine the worst golfer on the PGA tour. Suppose you\u2019re a really good golfer who plays every week. Would you really want to bet a significant amount of money on whether you could beat that guy at a round of golf?<\/p>\n I didn\u2019t think so. So just answer the questions. Leave the lawyering to your lawyer.<\/p>\n ________________________<\/p>\n Zach Wolfe (zach@zachwolfelaw.com<\/a>) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (zachwolfelaw.com<\/a>). Thomson Reuters has named him a Texas \u201cSuper Lawyer\u201d\u00ae for Business Litigation every year since 2020. <\/em><\/p>\n These are his opinions, not the opinions of his firm or clients. Reasonable people can disagree. Every case is different, so don\u2019t rely on this post as legal advice for your case.\u00a0<\/em><\/p>\n This post was written by a human, not AI.<\/p>\n<\/p><\/div>\n\n","protected":false},"excerpt":{"rendered":" So I was talking to a client about his lawsuit. \u201cYeah, they want a response to their settlement offer,\u201d I said, \u201cor if we\u2019re not going to settle, they want to schedule your deposition.\u201d \u201cWhat\u2019s a deposition?\u201d he said. That\u2019s like asking a football coach, \u201cwhat\u2019s a first down?\u201d If you work in litigation, like […]<\/p>\n","protected":false},"author":1,"featured_media":354852,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[11235,64241],"dealstore":[],"offerexpiration":[],"class_list":["post-354851","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-clients","tag-depositions"],"yoast_head":"\nWho else will be there?<\/strong><\/h3>\n
What will the lawyer ask you?<\/strong><\/h3>\n
What will your lawyer do?<\/strong><\/h3>\n
Can I talk to my lawyer during a break?<\/strong><\/h3>\n
Where will the deposition take place?<\/strong><\/h3>\n
When and for how long?<\/strong><\/h3>\n
Why is the lawyer taking your deposition?<\/strong><\/h3>\n
What are you trying to accomplish in the deposition? <\/strong><\/h3>\n
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