By Reed Morris
A deposition involves the taking of your testimony, under oath, usually during a pending lawsuit. An official court reporter will be present to record the opposing attorney’s questions and your answers. There will be no judge, arbitrator, or jury present, just attorneys and authorized representatives of the parties to your lawsuit. In even the most mundane business or contract dispute, your deposition can significantly affect the value of your case, the likelihood of settlement, and your chances of winning or losing.
The stated reason depositions are taken is that court rules allow the discovery of all facts that may be relevant or that may lead to relevant evidence in a lawsuit. However, since the vast majority of cases never make it to trial, the primary goals of depositions go beyond pure discovery of facts. Depositions are tools used to weaken a case, drive settlement, or win a case by pretrial court decision.
A deposition is often the first—and may be only—point in a case when you will actually testify. Your testimony is critical for its substance, form, and even your demeanor. Note that within the realm of the truth (the substance), how you answer questions (the form), and how you come across (your demeanor), are all things that can be controlled.
The single most critical factor in deposition success is your preparation. Your lawyer needs to work with you to prepare in each of the following areas:
- Describe to you exactly what a deposition is and how it will take place. (see above)
- Describe the four primary purposes of a deposition: discovery, certainty, impeachment, and defense.
- Provide you with an overview of your case and your strategy so you understand the key role your testimony will have in the case.
- Explain how your testimony could be used by the opposing party to defeat or weaken your case.
- Select key documents for your review, and review them with you.
- Review all written discovery answers in the case with you, particularly any discovery answers or affidavits you have already provided.
- Explain the typical question and answer types that present common pitfalls; provide you with strategies to avoid these pitfalls.
- Coach you on how to conduct yourself. Your conduct is always important, and this is so whether you are being videotaped or your voice is being recorded. Everything you say will make it into the record.
- Practice, role-play, and provide analysis of your answers in key areas. Practice questions your own attorney may ask you during the deposition.
- Provide necessary time for in-person meetings with legal counsel to cover the above topics well in advance of your deposition.
Mallon Lonnquist Morris & Watrous, PLLC is a business and real estate law firm. Reed F. Morris is a Colorado business and real estate litigation attorney based in Denver, Colorado. Reed regularly represents businesses and individuals in business transactions and disputes, from pre-filing through trial, and can be reached at firstname.lastname@example.org.