September 1, 2020

Podcast: What is a Deposition?

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "What is a Deposition," litigation attorney Dan Small clarifies what a deposition really is. Although very familiar to lawyers, depositions can be confusing for witnesses. Mr. Small explains that misconceptions surrounding the formality of the proceeding, style of questioning and discovery all contribute to this confusion, highlighting that counsel must recognize and address these concerns. He then details what a deposition is, what its purposes are and what witnesses should focus on throughout it. By helping a witness understand both what a deposition is and what it is not, counsel can ensure they enter the proceeding prepared and leave it with a clear and accurate transcript.

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Dan Small: Deposition. The word brings comfort to a lawyer's mind. It is, after all, the most common and familiar litigation environment. However, to most laypeople, it is not common, it's confusing. Look it up in the dictionary and it has multiple meanings: "deposing a leader," "depositing sediment" and more. Even if a client or a witness gets to the legal definition, "the giving of testimony under oath," it's still not clear what they're walking into. That confusion and concern is important for lawyers to recognize and to address. There is, after all, real cause for concern. In fact, a deposition is an extraordinarily deceptive event for most normal people for several reasons.

Depositions Are Formal, not Informal, Procedures

First, formality. Unlike a trial, where it is impossible to ignore the formality of the proceeding, the bench, the robes, the court officers, everything, a deposition often has some of the appearances of informality. There is no judge or jury. Perhaps it takes place in a conference room. Perhaps there is a casual atmosphere among counsel. It may even be held via video conference or done remotely with a webcam. Don't be fooled, a deposition is actually a very formal procedure. It is formal testimony under oath, transcribed and picked apart as it would be in any formal legal proceeding. Treat it with all the caution that you would a full-scale trial.

Testimony, not Conversation

Number two, conversation. With the lawyers chit chatting, folks sitting around a table, and often a casual style of questioning, at least at first, it's easy to think of this as a friendly conversation. Do not make that mistake. This is testimony and must be handled with the unnatural language and rhythm of the witness environment. Question, pause, answer, stop, and then start all over again. Question, pause, answer, stop. Do not offer any additional information that is not asked for in the question.

Depositions Are Important, Don't Treat Them Lightly

Third, discovery. "Oh, this is just discovery, we're just at an early stage of the case." Both in the preparation and the deposition itself, these can be easy excuses to treat the process lightly. Nonsense. These days, only an absurdly small percentage of cases go to trial. It's too expensive, too time-consuming, too unpredictable, too risky. Most cases essentially get decided at the deposition stage or shortly after. Even in the rare case that does go to trial, depositions often control the testimony and the outcome.

What Is a Deposition?

So with all that a deposition is not, how do we help a witness to understand what it is? As one court put it, "Depositions are the factual background where the vast majority of litigation actually takes place." Hall v. Clifton. A deposition is an important fact finding, or discovery, proceeding in a civil case. Depositions or similar testimony situations also happen in a wide range of government investigations, administrative hearings and other proceedings. Although the details may differ somewhat, for these purposes, we will lump all these types of proceedings together with depositions. A deposition consists primarily of questions by lawyers and answers by the witness under oath. It is not a trial, no judge or jury is present, and nobody is there to keep score or award a verdict. Charm, persuasiveness, sincerity and other appealing human attributes are largely wasted in a deposition. The principal result is usually a written record known as a transcript, which will be used or misused by the lawyers further down the line. The true audience is generally not even in the room. Therefore, the most important task for a witness in a deposition is to keep the transcript clear and accurate.

A witness rarely wins a deposition in the sense of convincing the questioner or other side that the witness is right. The more realistic goal is convincing the questioner that you will make a good witness by being clear, precise and careful, so mistakes aren't made that can be used later. At the same time, the lawyer will want to work with the witness to understand what key themes, if any, both of you want to emphasize.

Purposes of Deposition

To help prepare for a deposition, it's important for the witness to understand the principal purposes of the process. In most depositions, the questioner has more than one purpose and sometimes combines all five. Each purpose emphasizes a different part of the preparation.

Gathering Information

Number one, gathering information. The questioner is trying to learn more about the matter. The witness does not need to do the questioner's job. In my 10 rules for witness prep guidelines, also a podcast series, I call this rule number five — don't answer a question you don't understand — and rule number eight — don't volunteer.

Obtaining Admissions

Number two, obtaining admissions. The questioner is trying to lock the witness in on certain points helpful to the other side's case. Help the witness to understand what those points are, legal and factual, and to admit what he or she must if the questions are fair, but no more.

Testing Theories

Number three, testing theories and themes. The old saying is appropriate here, "Just because someone said it doesn't mean it's true." The questioner may raise a variety of theories, but if the witness listens carefully and doesn't agree, the witness should say so.

Testing the Witness

Number four, testing and evaluating the witness. The witness is not being tested for his or her ability to argue or score points on the questioner. Rather, the witness is being evaluated on how they will appear to the finder of fact. The witness has to stay focused and disciplined, and be relentlessly polite and relentlessly positive. Prepare the witness to avoid getting distracted.

Testing the Opponent

Number five, testing and evaluating the opponent. The questioner is evaluating everyone in the room. Lawyer and client need to show that they are in sync on discipline, on substance and on responding to aggressive tactics if necessary. The witness should listen to everyone in the room, carefully consider anything his or her counsel says, and when in doubt, ask your counsel. Before you allow a witness to venture into the strange world of a deposition, make sure that they clearly understand what it is and what it is not, otherwise you have put them at a terrible disadvantage.

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