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The Dreaded Deposition - A litigator's Guide to Staying Strong and Succeeding in a Deposition


To most who are unfamiliar with the legal process, a deposition may be an intimidating experience. A deposition is a pre-trial method of discovery in which one party in a case has the opportunity to ask questions of the other party or a witness under oath.

Traditionally, there will be at least three other people at the deposition other than yourself. 1. Your attorney; 2. The Court Reporter; and 3. The attorney taking the deposition.

The point of a deposition is to discover the testimony of a witness in advance of trial. The deposing party, usually an attorney, may ask any relevant question they believe necessary. The purpose of this is to gather information, evidence, and testimony for use in the matter. Depositions can be a valuable tool for both parties to clarify the facts of a case and discover the relative strengths and weaknesses of the deposed party. This allows the parties in the case to better understand the strengths and weaknesses of their case and to determine which issues may be in dispute. Depositions can also be used to preserve the testimony of a witness in case the witness is not available to testify at trial.

There are several steps you can take to prepare for and handle a deposition:

1. Review the relevant information. Before the deposition, you should review any documents, pictures, text messages, recordings, or anything that may be relevant to the case.

2. Understand the scope of the deposition. You should have a clear understanding of the purpose of the deposition and the specific questions that will be asked. Your attorney should provide you with a list of potential questions and help you prepare for the deposition.

3. Practice your testimony. You should practice giving your testimony out loud. This will help you become comfortable with the process and give you an opportunity to practice answering questions.

4. Be honest. It is important to be honest and truthful during a deposition. Lying under oath may have legal consequences.

5. Listen carefully to the questions. Pay attention to the questions being asked and take your time to answer them. If you do not understand a question, ask for clarification. Think carefully about what was asked and think out your answer in your head before answering. It’s OK and preferable to take a second or two before answering.

6. Answer only the question asked. Do not volunteer more than what was asked. A good example of this is this hypothetical:if the attorney holds up a pen and asks you what it is, simply state that it is a pen. Don’t volunteer it’s a red pen made by any company that looks to be chewed on. Note also, don’t volunteer information. If there is an uncomfortable silence following an answer, or the attorney simply stares at you, do not answer more. Simply wait it out.

7. Do not speculate. If you do not know the answer to a question, simply say that you do not know. Don’t guess, only answer that which you do know.

8. Be consistent: Be consistent in your testimony. If you are asked the same question several times, your answer should be the same each time.

9. Take breaks. If you need a break, let the deposing attorney know. It is important to stay focused and take breaks as needed. Note, however, any pending question must be answered before the parties may take their break.

10. Be calm. The questions are designed to elicit testimony and a record. You want the record to be as normal as possible without drama.

11. Talk slowly and not over one another. The court reporter will be transcribing the record. Let the attorney ask the question, and then answer the question. Nobody should talk over one another.

12. Expect objections from your attorney. Your attorney will make objections on the record. Note though, unless the attorney tells you otherwise, you must still answer the question.

13. Thoroughly review the written transcription. You will be given an opportunity to review the transcript and correct any word choice errors, or minor issues in what you testified to. You will not be able to change your testimony, but you can correct issues with names, dates, or

For the most part, depositions are just an afternoon of questions that you’ll have to answer. It can be stressful, but your attorney will be there to help you through this.

Depositions are part of the trial process, and though not commonly used in Family Law situations, they are increasing in usage and may be expected. Your Harris Family Law attorney will help prepare you for this possibility.

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