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ADVICE ON SURVIVING A DEPOSITION

part one of three
by Bryan Dawson

I have taken and defended several hundred depositions during my 22 year legal career. During
that time, the process has become, at times, so routine to me that it can feel like another day at the
office. For clients, however, a deposition is a foreign experience and can be one of the most intense
days of their lives. This three-part blog entry is designed to guide clients and non-clients about how to
survive this intense experience. I’ll start off by describing what a deposition is, and then I’ll explain (in
separate posts) the only two rules for deposition testimony that matter.

What Is a Deposition?

A deposition involves a witness being asked questions while under oath, but not in court, by
an attorney. Almost all depositions take place in a conference room at one of the attorney’s offices. In
rare cases, the attorneys may arrange for depositions to occur at a courthouse, a court reporter’s
office, or another public building if the location is remote.

The persons present at a deposition will be you or another person as a witness, usually the
witness’ attorney, at least one questioning attorney, and a court reporter. If you are a party to the
lawsuit, meaning you have sued somebody or have been sued, your attorney will be at the deposition
sitting at your side as you testify. Occasionally, a witness will not be represented at a deposition
because the witness is a non-party – such as an eyewitness to an auto accident or to some issue in
dispute at a worksite – who has decided not to hire an attorney.

The court reporter administers the oath to the witness at the beginning of the deposition and
then takes down everything that is said during the process. Usually the court reporter will have an
audio recorder and a stenography machine on which he or she will type everything that is said on the
record. The testimony will then be compiled into a transcript which can be 20 pages for a brief
deposition or 200 pages for a full-day deposition. The attorneys can later use the deposition transcript
at trial or arbitration, especially for witness says one thing during the deposition and then attempts to
give different testimony during a hearing.

A few other people may be present at a deposition. Parties to a lawsuit – so again someone
who has filed a lawsuit or who has been sued – have a legal right to attend the deposition and usually
a keen interest in what is said, so they will often be present to listen to the testimony. Non-parties
such as spouses, parents, or employees do not have the same legal right to attend the deposition and
they may be witnesses themselves. Sometimes the questioning attorneys will consent to non-parties
being present, but usually they should plan to wait in the lobby while the deposition is occurring.
Sometimes a videographer will record testimony in addition to the court reporter.

A Few Guidelines for Depositions:

If you are represented by an attorney, listen to what he or she says about any guidelines or
rules that apply to your testimony. Attorneys give very different advice about depositions and most
other issues, so your attorney’s advice should trump anything you read from a stranger on the
internet. If you are not represented, the following guidelines may help you.

  • Even non-parties can be represented by an attorney. If you have any concern that your
    testimony can have legal ramifications for you, consider hiring your own attorney before
    testifying. If you were sitting in a restaurant and witnessed an auto accident, your testimony
    will likely only affect those who are in the accident. By contrast, if you are also injured in the
    accident, your testimony could affect your legal claim and you should think about being
    represented by an attorney.
  • Check with the attorneys about how long they expect your testimony to last. As indicated,
    some depositions last 20 minutes and some take 20 hours. If you’re not represented by an
    attorney, and have received a subpoena to testify deposition, the attorneys issuing a
    subpoena will usually give you some idea of how long expect you to testify, so you can plan
    how much time you will miss from work and arrange other scheduling issues.
  • Wear comfortable but somewhat formal clothes. Usually, leave your T-shirts and your ties in
    the closet at home.
  • During testimony, you can take as many breaks as you want, but you have to answer a
    pending question most of the time before taking a break.
  • Make sure you understand questions before you answer. You should always ask the attorney
    to rephrase or repeated question if you’re not sure.
  • Let the attorney finish questions before you begin your answer, and you can demand that the
    attorney let you finish your answers.
  • Work with your attorney about whether to review any documents before you testify.

These guidelines should give you some idea what to expect at a deposition. The next two parts of
this blog will deal with the two rules that are critical to your testimony.

About the Author: Bryan Dawson is a partner in Dawson Law Group PC, with offices in Portland and
West Linn, Oregon. He has tried dozens of cases in personal injury, insurance defense, and
construction or contract disputes.

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