Being deposed is not for the faint-of-heart and should be taken very seriously. As I’ll explain, a deposition can cost you your case as a plaintiff or defendant and cost you your job and career as an expert witness. Even as “just” a witness, a deposition can set you up for a perjury charge.
A consumer law attorney that I’ve done quite a bit of work for described a deposition simply. The other side is trying to get information from you that they can use against you later. They hope to either counteract and contradict your future testimony in trial, arbitration, or mediation or prove you lied about something. It is as simple as that.
I’ve been deposed 165 times and counting, plus I’ve testified in proceedings similar to a deposition while serving as a military policeman. My depositions involved mostly lemon law, breach of warranty, and dealership fraud cases, but I’ve had 4 depositions as a transportation/trucking liability expert witness. My shortest deposition was just over 2 hours. The longest was 3 days. Yes, 3 days. It was a lemon law case in Maryland against Hyundai.
I can’t emphasize enough that a deposition is as serious as a trial. There’s the attorney representing you or the client you work for, as in my case, or perhaps you’re a witness for that attorney’s client. The other side, be it plaintiff or defense, has an attorney. There’s a court reporter, and in addition to the reporter typing the minutes of the deposition, the event will likely be recorded, as well. I’ve been in 4 video depositions, taking the level of recorded evidence up a few notches.
It’s tough to cover every type of case you may be involved in, so I’ll tell you about a few of mine and hopefully something works out similarly for you. The deposition is a fact-finding mission and is part of the discovery process after a lawsuit has been filed. Depending on the rules in the jurisdiction and level of court (city, county, state, federal), there will be a time limit imposed on both sides for this discovery process – each jurisdiction has their own rules. This presents attorneys with both good and bad factors – in many scenarios, they can get through discovery quickly and get the case to trial or get it settled. In some situations, where delays interfere with scheduling or the attorney wants to delay the proceedings out of necessity or strategy, they simply can’t extend the discovery deadline. Discovery is a controlled process.
Your involvement as a witness is straight-forward in most depositions. You meet the attorneys for both sides in a meeting or conference room, the court reporter sets up their equipment, and you are sworn in. You swear to tell the truth and nothing but the truth, just like if you were on a witness stand in a trial. The deposing attorney, meaning the one who requested your deposition interview, will introduce themselves and try to make you comfortable. As they go over the deposition rules, they’ll usually offer sodas, water, or snacks, and make sure you understand that you can take a break if you ask.
There’s a reason for your comfort, from one strategy – the more comfortable they make you, the more relaxed you become, and the more willing you are to treat this process like a regular conversation. It is not a regular conversation. We’ve all seen TV shows where the police advise someone of their Miranda Rights and use the line, “Anything you say can and will be used against you.” That is never truer than in a deposition. These people are not your friends. They are there to oppose the position you take.
In the 3-day deposition in Maryland, even though I’d been an expert witness for over 4 years at that point and had been deposed and testified in trial in several states, the attorney treated it like he’d never heard of me. He asked me every conceivable question you could imagine. I was required to name my school teachers from kindergarten to college. I was required to name my military instructors in each military course I’d taken. I was required to name my supervisors or managers in every job I’ve held, starting at age 12. I’d been deposed over 100 times at that point, and rolled with the questions, but both my accompanying attorney and I got frustrated over these questions.
The reason for these questions was crystal clear to me about 6 months later. During the Hyundai deposition in Maryland, I was asked about the name of my third-grade teacher, along with the other teachers aforementioned. I told the man it was Mrs. Wade – I was going to explain further, but was shut down. When I tried to bring up a point, the defense attorney objected, and we were required to move on. In a trial in New Jersey 6 months later, I was asked that specific question again – it seemed odd, since it was the only question unrelated to the vehicle or case we were in trial for – I answered, “Mrs. Wade and Mrs. Wolfe”. The attorneys met the judge for a sidebar, and I was nearly disqualified as an expert witness. In a previous deposition over a year earlier in Pennsylvania with an attorney representing Toyota, I had been asked the same series of questions about my teachers. You see, in the middle of my third-grade year, my family moved across town and I changed elementary schools. I had Mrs. Wade for the fall semester, and Mrs. Wolfe for the spring semester. I had 2 third-grade teachers. I was only able to give the first part of the answer to that third-grade question, and the question was intentionally set up to make me lie or give incomplete information. After all, if I’d lie about my third-grade teacher, what else would I lie about? You see where I’m going?
I’m not giving you this information to scare or intimidate you. I’ve seen many depositions, my own, and those I sat in on as a deposition strategist, where the witness talked casually and answered questions in a relaxed manner, and it cost them their case. Or the case of the person they worked for or represented.
I’ve noticed a significant trend in two groups – truck drivers after an accident, and police officers after an arrest or incident. The other side will pick apart their story or version of an accident or incident and try to find a couple of spots where the person’s judgment or adherence to policies or regulations can be brought into question. They then paint you as a “habitual DOT rule offender” or a “rogue cop,” both of which bends the rules to suit them without regard for the safety and security of the community at large.
By the way, the transcript provided by the court reporter to both plaintiff’s and defense counsel can be read aloud to a jury and can be given to a jury to read during deliberation. When you understand the typical composition of a jury, you see people from all walks of life, and those who generally don’t know the technical aspects of DOT hours of service or police procedures. The other side tried to paint you as a liar. And now your own words may come back to haunt you. Choose your words carefully.