Ciyou & Dixon, P.C. recently posted a blog on depositions and technology and what happens after a deposition is given. This blog focuses on some universals of the actual experience of a deposition–the general rules that are given by the deposing attorney to each deponent. They vary slightly from case to case.
However, if you face a deposition and understand these rules, it will go a long way to minimize the unknown and fear associated with it. And as always, having sufficient knowledge of the process and general rules, allows litigants to have less stress and better answers to the questions.
A deposition is one type of discovery. Discovery is the process attorneys use to gather information from the opposing side, and third parties, who are not actually named in the case. There are multiple ways to gather information, but one method is a deposition on oral questions in which the deponent goes to the deposition location, is sworn in, and is asked a series of questions,1 usually beginning with opposing counsel.
An important note on depositions is that they are under oath. You must swear to tell the truth, and a court reporter is often there, recording your answers. So, to begin, the attorney asking the questions will often introduce themselves and generally explain the deposition process.
After the deposition is over, the deponent will have a chance to review the deposition and make any changes for errors, such as the word “for” inserted instead of “four”. These are made on an errata sheet. These sheets are to correct true errors, not provide a better answer to the question.
This background noted, now back to the five rules:
Rule 1: Understand the Question Being Asked.
It may seem like a simple proposition, but is critical if you are being deposed, that you understand the question precisely. This is a statement under oath that is being recorded, if you are confused about a question, or unsure of what is being asked, and you respond anyway, that mistaken answer could later be used against you.
For this reason, if you are unsure or confused about a question, stop and speak up. The attorney will rephrase until you understand exactly what they are asking, allowing both the attorney and the deponent to be on the same page. Or the attorney may ask the question in several parts.
Rule 2: Give Oral/Verbal Answers.
Another important aspect to understand in a deposition is that because it is being recorded by a court reporter, oral answers must be given. Because the process is more informal than a courtroom, it is often just the parties sitting around a desk or table, deponents often shake their heads or use “uh-huh” or “nuh-huh” in their responses. Those types of responses are not captured in a deposition or are not well reduced to writing. Make a clear and understandable answer.
Stated differently, these non-verbal answers are not helpful because they do not create a clear answer for the record. The deponent should verbalize “yes” or “no”, or otherwise, leaving no confusion in the typewritten record that will follow. It is often a hard habit to break, as this is a normal understood part of our communication.
However, court reporting instruments are not people and do not determine the precise answer or validate it through other non-verbal ques. The deponent should speak clearly and verbalize all answers to ensure what they are intending to say is recorded. And even a verbal “uh-huh” and “nuh-huh” sound too similar to decode.
Rule 3: You Will be Asked about Medications.
Because a deposition is under oath, the attorney will likely ask if you are on any medications, drugs, substances, or have any mental (or physical) health conditions that would impede your ability to answer questions. Be aware of this.
If you are suffering any impairment, discuss this with your attorney beforehand. The last thing you want to do in high-stakes litigation is give an inaccurate answer because of a migraine, physical pain or the like. If this is your situation, the deposition may have to be rescheduled.
Rule 4: Breaks.
Depositions are often long processes, and breaks are often required. However, the timing of breaks may be important. If you, as the deponent, are unsure of how to answer a question and you begin to panic and ask for a break before you answer, the other side will likely ask you to answer the question before the break. Ask your attorney before the deposition how to handle questions that you are unsure about and breaks to avoid panicking.
Rule 5: Objections.
In the courtroom, objections are fairly common, with attorneys piping up often with claims of hearsay and other objections. The trial court then either allows the questions (overrules the objection) or sustains it (meaning the person testifying cannot answer the question). However, in a deposition, the rules for objections are much more lax.
Attorneys can object for the record and sometimes do, but the objection is essentially just to preserve for the record, as there is no judge to rule on the objection. So, do not get discouraged if your attorney is allowing hearsay and not frequently objecting. On the other hand, attorneys may object frequently and still allow you to use the question. This preserves the right to object in the event the deposition would be used in the courtroom at a later date.
In a few cases, such as if the question asks if you committed a crime or what your attorney advised you, the attorney may not only object, but instruct you not to answer the question. This is a technical area that will ultimately be addressed by a trial court. Follow your counsel’s objection.
Knowing the universal rules of depositions will not prepare you for every scenario in your deposition, but it will allow you to focus on your answers, rather than the process. Be sure to discuss your pending deposition with your attorney, and ask if they can help prepare you for the questions. Depositions are another way to discover information, and knowing the rules can allow you to quickly and effectively complete your deposition.
Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana. This blog post was written by attorney Bryan L. Ciyou and Jessica Keyes, law clerk. We hope you find this blog post useful. If so, it has met its goal.
- Ind. Trial Rule 30.