I’ve Been Subpoenaed For A Deposition – Now What?

Whether you are a party to a case or a potential witness, you may be required to answer the other side’s questions under oath.

What is a Deposition?

A deposition is like an interview: You are providing testimony under oath and that testimony is being transcribed (written down verbatim). Depositions are a form of discovery – the other side can ask about things that are reasonably calculated to lead to the discovery of admissible evidence. It is easiest to think of a deposition like the top of a funnel – it is wider, covering more topics – whereas the bottom of the funnel is similar to trial, where the testimony will be narrowly tailored to the issues.

The attorney asking questions is usually the opposing party. The attorney who is attending (or “defending”) the deposition is usually your attorney or the attorney for the party who wants you to testify at trial. The defending attorney will often make objections during the deposition and will tell you whether you can answer the question after the objection is made.

So, now that you generally understand what a deposition is – How Do You Prepare?

If you have prepared written statements for the case, you should review them. This will help refresh your memory about what you have previously told the person taking the deposition (asking questions). You don’t need to memorize your prior statements, but you should refresh your memory.

You should not discuss your testimony with anyone else (except your attorney). Often, the person taking the deposition will ask you what you did to prepare – if you discuss your testimony with others, it may appear that you are attempting to collude to “get your story straight” or influence others. If you discuss your testimony with your attorney, that information cannot be disclosed because of attorney-client privilege.

Is There Anything Else You Should Know?

YES! Your only goal should be to tell the truth and to testify honestly. Outside of this guiding principle, here are few tips and tricks for a successful deposition:

ONE: Do not talk over one another. The deposition is typed verbatim and only one person’s statement can be written at a time. If you interrupt a question or start talking over one another, the record becomes unclear and may be difficult to understand later.

TWO: Take your time. The amount of time it takes for you to form a thoughtful answer will not be reflected in the transcript so, take your time. It will also give you time to consider the question being asked, making sure that you understand it and that you are only providing an answer responsive to that question.

Taking your time also allows for the defending attorney to consider whether the question is objectionable. If there is an objection, you almost always have to answer the question (unless the information is privileged), but objections at a deposition may make the testimony inadmissible at trial. Again, just because the information is in the transcript does not make it admissible testimony.

THREE: “I don’t know” and “I don’t remember” are full and complete answers. Assuming you are testifying truthfully, if you do not know or do not remember – just say so!

FOUR: If you have other questions or concerns – ask your attorney! A deposition is your testimony, under oath. That is why it is important to know what to expect and to take the deposition seriously.