Testifying in a Deposition
A deposition is a witness’s pre-trial, out-of-court testimony taken under oath. A deposition is a part of the discovery process and, in some cases, can be used as evidence at trial. If you are being deposed, you are referred to as, the “deponent”.
Due to the very nature of the investigation business, you will likely become a deponent more often than the average person. In fact, the better of a job you do, the more you will find yourself testifying in a deposition; not always, but that’s usually the way it works out.
Once you’ve completed an investigative assignment, your final report and other evidence collected will be shown to the opposing party, usually by your client or their attorney. Typically, if deposing you is necessary, you will be summoned to the deposition by the opposing attorney.
Only an attorney can depose you, and it is suggested, if your side is represented, your attorney should be present at the deposition to ensure you only answer what is necessary. The entire deposition is preserved verbatim by a court reporter, who is present throughout the session and is, in most cases, who will swear in the deponent.
Examination Under Oath
In matters related to insurance claims, an examination under oath (EUO) is a powerful tool made available to insurers and, in some cases, when performed correctly, can also be a help to insureds. An EUO is a formal proceeding during which an insured, under oath and in the presence of a court reporter, is questioned by an insurance company representative. The difference between an EUO and a deposition is the person administering the EUO is not an attorney.
Environment of a Deposition
During a deposition, once you have been sworn in, the opposing council will begin asking you questions. Some depositions are narrowly tailored and focused on one piece of the case, other depositions can be long, even taking place on separate days, if the opposing council is looking for a complete account of your involvement in the case.
Depositions typically take place in the conference room at a law office, but can sometimes occur over the phone or via video conference. Y\In most cases, you’ll be accompanied by your client’s legal team, opposing counsel, a court reporter, and possibly a videographer.
Sticking to these 10 best practices will ensure you represent yourself well during your appearance at any deposition:
- Be professional – Dress appropriately as you would for a day in court. However, avoid overdressing and do not wear flashy jewelry, expensive watches, etc. This may be a turn off to those present at the deposition. Provide your client’s attorney with your résumé prior to the deposition. This will give they attorney a better idea of your character and level of expertise.
- Be candid, not a tour guide – “Yes” or “No” answers unless you are specifically asked to elaborate. Even when asked to elaborate, stick to the question asked and keep your answers as narrowly tailored as possible. There is no reason to assist the opposing counsel with their case. Less is more here.
- Beware of the pregnant pause – When training people on taking a recorded statement, one of the tools we use to elicit more involved responses, is silence. Next time you talk with someone, ask them a question and when they have answered the question, don’t respond. They will typically begin speaking again, maybe elaborating on the question because they feel you didn’t understand their original response. Don’t fill pauses or silences or attempt to fill in the blanks. It’s not your job to keep those present entertained or comfortable. Trust me, these pauses will be uncomfortable but after a few times, the opposing council will get the picture.
- Be prepared but not too prepared – There isn’t a need for you to supply or offer knowledge of documents unless requested in the original summons. Written reports, notes, images, and paperwork are discoverable and can be used as evidence if introduced. Review your documents prior to your deposition.
- Don’t be afraid to say, “I don’t know.” – If you don’t know the answer, you can’t be compelled to come up with one just because you’re in a deposition. Simply say ‘I don’t know.’ Don’t feel that just because a question is asked, you are expected to know the answer to it. If you don’t recall what is being asked about, say ‘I don’t recall.’ If you are caught lying in a deposition, you will perjure yourself under oath.
- Take your time and pause before each answer – It’s not a race and you will be billing your client for your time. Also, pausing before each response allows your counsel the opportunity to object to questions and it gives you a moment to think about your answer.
- Stick to the facts, never embellish – Always answer to the best of your ability, but only if you have firsthand knowledge. Never quote second-hand information as your testimony. You can’t give insight into someone else’s feelings or thoughts.
- Keep your cool – Opposing counsel will try to ruffle your feathers and may even try to bully you. Stay calm, cool and collected from the start, to finish. Ultimately, you want to portray professionalism and fairness, never show signs of anger or boredom. If you need a break, simply ask for one. Your counsel will request a five-minute recess if necessary.
- Avoid humor – Sarcasm, laughter, and one-liners don’t come across so well in writing. There isn’t a comedic font for the computer, so humor doesn’t come off well on written transcripts. And the obvious, it isn’t the setting for jokes.
- Review the deposition – Insist on a complete review of your testimony after the interview is over. You’ll want to check the court reporter’s written account for accuracy and to ensure nothing was left out or may be taken out of context.
It should go without saying, how you conduct yourself during a deposition can make or break the case. Be mindful, at all times, that your deposition is being taken to afford your opponent with legal ammunition to use against the case at trial. Always be kind and cooperative, but always be mindful of what you utter, and do not volunteer more information than you have to. Keep in mind, you may confer with your attorney at any time during your deposition.
Do you have any unique story’s regarding a deposition you were involved in? Any other tips to offer on the matter? When is the last time you found yourself testifying in a deposition?
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