What is a deposition?
You’ve heard it on T.V., you’ve read about it in the papers, but when it comes down to it, you truly have no idea what it really means. If you’ve been injured in Las Vegas, you’ll likely hear this term thrown around a few more times, and depending on your case, you, yourself, may become deposed.
A deposition is essentially a recorded interview that is made under oath. The same oath that you would take in the courtroom and carries with it the same penalties of perjury. It is a discovery tool that is used by attorneys for essentially two basic purposes. First, deposition testimony can be used to gather information about the underlying case. Second, depositions are used to lock in testimony for the time of trial. What does that mean? Well, unlike what you see on T.V., trials are not meant to be conducted in a manner that results in surprise testimony from the witnesses. In fact, both parties are entitled to know all information about the other party’s case before the start of trial. In other words, your testimony during the deposition should match what is said during the course of trial. If it doesn’t, then the other party may be able to use any discrepancies to attack your credibility.
In the event you are deposed, here are some basic ground rules for performing well in a deposition setting.
- Tell the truth
Our first ground rule is to tell the Truth. This rule goes hand in hand with the second purpose of the deposition, which is locking in the testimony for the time of trial. If you do not tell the truth during your deposition and are caught being untruthful, then your credibility as a witness can be attacked. You should tell the truth on all matters discussed during your deposition. Even if you are asked a question that you do not believe to be relevant, offensive, or embarrassing, you should answer truthfully. If you don’t, you might turn a fact that would not normally be admissible as evidence into a detail that goes in front of a jury. The most common example of this is prior convictions. Be honest about any criminal history during your deposition. If you do, you reduce the likelihood that it goes in front of the jury for your civil law case. If you are honest about a prior conviction, then it normally does not come in as evidence at trial. However, if you are not honest about it then the other side can admit that evidence to show that you were not honest in your deposition. Which could have devastating effects on your case. There is a common jury instruction in Nevada, which usually reads as follows: “if you believe that any witness has lied about any fact, you are free to disregard all of that witness’s testimony.” Obviously, if the jury disregards your entire testimony, you will lose your case.
- Don’t guess
You should avoid guessing the answer to all questions at all costs. Guessing the answer to a question could have the same effect as telling a lie. If your guess to an answer ends up being wrong, then the other side can use that against you, claiming that your recollection or memory is not dependable. It is perfectly acceptable to respond to questions that you don’t know the answer to by saying “I don’t know”, “I don’t recall”, or “I don’t remember”.
- Give narrowly tailored responses
Listen to the questions being asked and only answer that particular question. For instance, if the other attorney asks you a yes or no question, only give a yes or no answer. If they ask a question calling for a one or two-word answer, just give that. There is no need to elaborate. Sometimes questions will call for a narrative but still only give a narrowly tailored response. If they ask you, “please take me through the events leading up to the accident.” only answer that question and nothing further. If the other side wants to get any information out of you, they should have to dig for it.
- Be respectful
This is actually one of the most important deposition ground rules. To fully appreciate the importance of this rule, you must consider the psychology of juries. It is human nature for people to want to do nice things for people that they like and conversely not do nice things for people that they do not like. What does this mean for your deposition? Well, a jury is going to find a way to rule in favor of Plaintiff’s that they like and find for the Defendant on cases where the Plaintiff is not likable. It is human nature that juries will ignore or find a way around the law and facts. The reason that this is important is that the first thing that an insurance defense attorney will do after taking the deposition of the Plaintiff, is make a report to the insurance carrier. The first thing on that report is usually how the Plaintiff will make as a witness. They know that a likable Plaintiff is dangerous because a jury will do whatever it takes to award money to a person that they like or thinks deserves compensation.
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