When most people think of having to testify under oath, they think of a courtroom with a Judge, a jury, and drama. That’s from TV and movies, but certainly if you testify at trial those things will be there.
The reality though is most people will never testify in a courtroom as most cases don’t make it to trial. But you still will testify under oath and it will be in a deposition.
A deposition takes place during a process called discovery. This is a way for each party to a case to learn facts and get answers to questions after a lawsuit is filed. Some of this is done via questions answered under oath in writing and some of it is done by the attorneys having a chance to ask you and other parties or witnesses questions under oath.
If it was a trial, most likely your attorney would call you as a witness and ask you questions first. Then the other attorney would get to do what is called cross examination which is fancy lawyer talk that means the other attorney is asking the questions. At a deposition it works differently. Your attorney talks to you and if they want to know things about your case, they can ask you directly. So at a deposition, it will be the other attorney who is asking the questions and your lawyer there will be there to protect you.
When I say protect you, I mean they will object to any questions that are irrelevant, be a person you can ask a question to and generally look out for your best interests. Even in a hostile case, most depositions are friendly because there isn’t a jury. That takes away the theatrical element of it. When the other attorney is done asking questions, your attorney can ask some as well and will do so if clarification is needed of a certain point.
At the deposition there will be a court reporter who will take down your testimony and also have you sworn under oath that what you are going to say is the truth. Other than the lawyers it’s possible the other party to the case will be there and that’s it. It typically takes place in a lawyer’s office or on Zoom.
There are a lot of things you can do at a deposition to help your case. In no particular order:
- Be honest. Don’t exaggerate or embellish.
- Answer the question asked only and don’t ramble on. Your attorney should prepare you for this in detail.
- Don’t guess at what the other attorney is asking. If you don’t understand, say so. If you don’t know, say “I don’t know.”
- Be friendly. A big part of the deposition is the other side assessing how you would come off to a jury and Judge at a trial. If they think you will fly off the handle or act like a jerk, it will strengthen their position.
- Dress appropriately. How you look also comes in to opinions on what impact you will make at trial.
And what you should certainly know is that there is no reason to be nervous. In the depositions I’ve been at, both as an attorney and as a witness, I’ve been stunned how unprepared so many lawyers are. It’s almost offensive when you consider how much you are thinking about the deposition and how clearly you can see how little they’ve thought about it. As long as your lawyer is prepared it’s nothing to worry about.
In most cases a deposition can’t last longer than three hours. Before the deposition happens your attorney should explain how to answer questions, tell you about the other attorney and ask you questions they anticipate the other lawyer will ask. This should help prevent any surprises at the deposition and give you a chance to collect your thoughts before you answer any questions because you’ll have a day or so to reflect on it.
Bottom line is don’t worry. And if you have any questions about testifying under oath at a deposition please call us at 312-346-5320 to speak with a lawyer for free.