In New York, during the discovery process of a lawsuit, each party often has the right to question the other party at an Examination Before Trial, otherwise known as a deposition. Because more than 95% of cases that are litigated are settled before trial, the deposition may be the only time that you will be questioned under oath.
The deposition occurs at one of three places: at a court reporters office, a law office, or the court office. Because lawyers often want the deposition to take place at a neutral site, they are often held at a court reporters office. If you had visions of arriving at plush office, with tea and scones being served, unfortunately, you may be disappointed. For instance, the court reporting facilities for Diamond Reporting in the Bronx is located in the basement of a pre-war building directly across from the new Yankee Stadium. A fellow attorney has described the décor as “neo bomb shelter.” Anyway, you should never allow the facilities to distract you from the task at hand.
Attending the deposition will be the attorneys for the parties involved in the litigation and a court reporter. The court reporter transcribes everything that is said. Opposing counsel sits at one side of the table, the court reporter sits at the head of the table, you will sit next to the court reporter, and your attorney will set next to you. In approximately a month following the deposition, all parties will receive a deposition transcript. Unlike a test in high school, you can actually make alterations to the transcript. For instance, if you misheard a question, you can affirm that you misspoke your answer and provide what you believe is truthful answer.
The deposition is not like a regular conversation. You will be sworn in, under oath, by the court reporter. If there are more than two parties attending a deposition, each attorney will have a separate opportunity to ask questions. They will ask very specific questions that require precise answers. Since every type of case has its unique set of circumstances, they are all somewhat different. However, here are seven points you should know prior to attending your deposition.
1. Dress well. Appearances do count. Wear a business suit. Do not dress like these celebrities.
2. Answer the question that is being asked. As an example, if you are being asked “What date did you sign the contract” don’t answer, “At Mr. Singer’s office, I signed a contact at 3pm.”
3. K.I.S.S. Keep your answers short and simple. Remarkably, the attorney asking you questions often has very little knowledge of your case. Each additional word that you say provides the opposing counsel with an additional opportunity to ask follow up questions.
4. Don’t Guess. Simply state “I don’t know” to a question you don’t know the answer to. Take it from me, after hearing millions of answers from witnesses, it is simple for an attorney to tell the difference between an answer that is real from a fictional account. Be honest.
5. Pause before answering a question. A deposition is not a race. Take a moment to make sure that you understand the question before answering. You can ask the opposing counsel to rephrase the question. It also provides an opportunity for your attorney to object to an improper question.
6. Don’t be afraid to take a break. You may become tired if the deposition takes over a few hours. As a result of fatigue, you may then provide answers that are not accurate. You also may take a break to speak to your attorney if there is not an open question.
7. The other lawyer’s are not your new friends. Believe it or not, some attorneys are actually friendly. I am married to a friendly lawyer. Don’t let that fool you. Opposing counsel may be using this as a technique to lure you into providing the information they need.