I took someone's deposition a month or so ago and they made some noise about knowing about me from my articles and it got me thinking that a prudent sailor should know a thing or two about depositions. A deposition is a form of discovery. Discovery is the process before a trial where each side exchanges documents and takes depositions to "discover" the full extent and depth of the other side's positions. (Modern legal practice gives a lot of attention to discovery because the process is a good way to unfold everyone's positions which ultimately tends to lead to settlements.) A deposition entails a witness (a party witness or a non-party fact witness), an attorney to ask questions and usually an attorney representing the witness and/or the party and a court reporter to take down what's being said.
The deposition usually takes place in a lawyer's office (or other informal setting) and the witness testifies under an oath which is given by the court reporter. If you are a deposition witness, take the time to meet with your lawyer beforehand to understand the pitfalls presented by a deposition. Indeed, what may be perceived as a chummy conversation can spell disaster for your claim or defense. Against that seascape, here are eight points to consider when preparing to be deposed.
First, dress appropriately. Ask your attorney for guidance, but I wouldn't wear shorts. Second, don't make friends at a deposition. The attorney asking the questions may want you to think she's your new friend Friday, but that's to get you to let your guard down. Third, only answer the question asked. Always remember this isn't a conversation and you generally should answer the question asked in the most succinct and accurate way. Fourth, don't get angry. An angry witness is a witness that's lost control and may say something that's not accurate. Let your attorney get angry. Fifth, you control the tempo of the deposition. If you need a drink of water or bathroom break, ask. Sixth, be truthful and accurate. "You're under oath" is all I have to say on that point. Seventh, don't guess. You want to be accurate and truthful in what you say and guesses and assumptions are like taking a big tack away from the wind and into unknown currents. Eight, pace yourself. The important questions tend to come toward the deposition's end when you're tired so remain vigilant right up to the time the attorney across from you says: "Well, I guess that's all the questions I have."
My money says what you may know about testifying is probably limited to what you've seen on television or the movies. That won't help you much. There tend to be few opportunities for your lawyer to "save" you by objecting to questions. Yes, certain questions may be objectionable, but I'll double-down and say most good attorneys are going to avoid asking objectionable questions meaning you're pretty much on your own.
Like I tell my daughter, getting her Opti across the line first takes practice and preparation. You'll never be as good a deponent as you will be a sailor, but you can certainly take the time to prepare. Preparation begins with speaking to your attorney and listening to what he or she tells you.
This article is provided for your general information, is not legal opinion and should not be relied upon. Always seek legal counsel to understand your rights and remedies.
Underway and making way.
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293) or visit his website at www.saltwaterlaw.com.