Your Discovery Deposition

Your attorney has notified you that your deposition has been scheduled. What does that mean? What is going to happen?

Under the rules of Civil Procedure of Wisconsin, each side in a lawsuit has a right to take the deposition of the opposing parties (as well as independent witnesses). When you become a plaintiff or defendant in any litigation, the opposing party may require you to appear at a specified time and place to give spoken testimony, under oath. It is a normal and customary thing to take discovery depositions in almost all civil cases. Your deposition, properly given, can go a long way in assisting your lawyer in handling your litigation, either by way of settlement or at the trial. What you do at the deposition can help you or hurt you, depending upon your preparation, attitude, truthfulness and appearance. We have found it beneficial to our clients to provide the information and suggestions outlined in this letter. There is no reason to be apprehensive regarding your deposition. If you give careful consideration to, and follow these suggestions, you will be an effective witness and increase the prospects of a successful conclusion to your case.

WHAT IS A DISCOVERY DEPOSITION?

A discovery deposition is the spoken testimony of a witness, taken under oath, before trial. A court reporter takes down the testimony by shorthand or by mechanical means, and transcribes it for future use in the lawsuit. The opposing lawyer will ask you questions regarding information that is relevant to the case, or which might lead to the discovery of relevant facts. This testimony, or some parts of it, may be used by opposing counsel at trial. Discovery depositions are not like the Perry Mason show. The deposition will be done in private, probably in an attorney's office. Most of the objections available at trial do not apply to discovery depositions. Also, we most likely will be taking the discovery deposition of the other side at that time.

WHAT IS THE PURPOSE OF DISCOVERY DEPOSITIONS?

The purpose of the discovery deposition is to discover all the facts a witness may know, which will help the attorney in the preparation and trial of the lawsuit. Depositions sometimes help to settle the case, because the facts are known to both sides.

PREPARE FOR THE DEPOSITION

At the deposition, you will be testifying from your memory of the events. Thus, you should attempt to refresh your memory before the deposition. You should concentrate and reflect upon the facts surrounding the incident leading up to, involving and subsequent to the occurrence itself. Try to picture in your mind the accident scene, and relive the events again in your mind. It may be helpful to you to visit the accident scene, and/or prepare a rough diagram showing directions and pertinent objects at the scene. You should do everything you can to refresh your memory. However, do not try to memorize your story. You must answer specific questions at the deposition, and not just tell your side of the story. No one can anticipate the precise questions which will be asked by the opposing attorney. Therefore, you must be prepared to picture the events in your mind and testify from your recollection. We will set aside sufficient time to discuss with you the details of the occurrence before you testify, in order to further prepare for the deposition.

PRESENT YOUR BEST APPEARANCE AT THE DEPOSITION

The discovery deposition is usually the first opportunity that the opposing attorney has to meet you. It is important that you make a good impression upon opposing counsel and his client. The opposing attorney will be making an evaluation as to your honesty, frankness and how you will impress the jury. Therefore, you should appear at the deposition dressed as you would expect to dress if you were actually going to court to appear before the jury. You should dress neatly and conventionally. It is not necessary that you wear a suit, and you should not wear one unless you ordinarily do so during your working day. Do not wear shorts, blue jeans, or other extremely casual clothing. Avoid heavy makeup and jewelry. If you are the plaintiff, come prepared to exhibit any and all injuries you have suffered.

MAINTAIN A PLEASANT DEMEANOR

Treat all persons in the deposition room with respect. In answering the questions of the opposing attorney, maintain a polite attitude. You should appear interested in your case, and project a sincere, candid demeanor. If you feel the other attorney is taking advantage of you, do not display this feeling. Your attorney will be present, and will do whatever he feels is expedient. Never argue or lose your temper. Do not be afraid of the lawyers. If you follow the suggestions given here, you have nothing to fear from them. However, consider this an important and official occasion, and avoid "getting friendly" with opposing counsel or his client. Remember, they are on the other side, and are not looking after your interests.

BE SURE YOU UNDERSTAND THE QUESTION BEFORE YOU ANSWER

If you do not hear or understand a question which is asked by opposing counsel, or if it is ambiguous, make no attempt to answer it. If you are not sure you heard the full question, ask that it be repeated. If you are not sure you understand the question, inform the questioning party that you did not understand the question, and ask that it be explained. An inaccurate response to a misunderstood question can materially affect the result of your case.

TAKE TIME BEFORE YOU ANSWER

Give the questions and your answers as much thought as is necessary. Do not be rushed. Do not agree too readily with opposing counsel.

MAKE AN EFFORT TO SPEAK CLEARLY

The court reporter is recording everything you say, which may later be used in court. You should speak slowly, audibly and clearly, so the court reporter properly records precisely what you said. Answer out loud. Do not shake your head yes or no, or say "uh-uh" or "uh-huh." The court reporter must be able to understand what you say, and can only take down words, not gestures.

TELL THE TRUTH

You will be sworn under oath to tell the truth, and it is your duty to do so. Do not be evasive in your answers. Answer the questions directly. Avoid exaggeration. Exaggeration is untruthfulness. Do not try to improve upon the facts of your case. The opposition can exploit an inaccuracy to his advantage. Undesirable results have been known to occur because of an unfortunate tendency to exaggerate. If, at a later time, the Judge or jury feels that you have exaggerated on one point, they may well think you have exaggerated on other points as well.

If you are the plaintiff, be conservative with respect to a description of your injuries. Do not magnify your injuries or losses. Tell the truth about the activities you have been engaged in since the accident, such as sports, work, etc. However, if these activities caused you discomfort or pain, be sure to tell that also. Be careful of saying, "I can't." "Can't" means physical impossibility. You can't move your hand if you don't have a hand. Ordinarily, you will say, "I am not able to do something as well as before." If you are asked if you had any injuries before this accident, be sure to tell the truth. Be sure to remember every previous accident or injury, including such things as football injuries, etc. Not telling the truth in this instance could mean your case will be lost.

DO NOT VOLUNTEER ANY INFORMATION

You have the duty to tell the truth, but you do not have the duty to help the other side prepare its case against you. Therefore, you should say no more than is necessary to truthfully answer the question which is asked of you. Answer only the questions which are asked of you, do not volunteer any additional information. Wait until the question is asked. Answer it as briefly as possible, and then stop. If you can answer, "yes" or "no", do so and stop. Do not volunteer any additional information. Explain your answer, if necessary, but do not make speeches.

There is one exception to this rule. If you are the plaintiff, this rule does not apply to your injuries. Volunteer answers on injuries or losses. Start at the top of your head and go to your toes so you will not forget any of your injuries.

DO NOT GUESS AT ANSWERS

Stick to the basic facts, and testify only to what you personally saw, heard, smelled, tasted and felt. Do not guess. If you know the answer to the question, answer it; but do not guess just to give an answer. If you give an estimate, say that it is an estimate. If you do not know, admit it. Some witnesses think they should have an answer to every question asked. You cannot know all the facts, and you do yourself a disservice if you attempt to testify to facts which you are not acquainted with. It is important that you be honest and straightforward in your testimony. However, do not answer every question with, "I don't know," just because you are not absolutely certain. You can truthfully testify to the best of your recollection. You may say, "I don't know exactly how far, etc., but to the best of my recollection it was about such and such." A jury may not believe you if you give an estimate at trial after saying, "I don't know" at deposition. Be positive. Do not say, "I think", "I believe", "I guess", "maybe", "possibly", or "perhaps." It is better to say, "As I recall", or "In my judgment." Do not unnecessarily qualify favorable facts. Answer questions concerning favorable details as definitely as possible.

BE CAREFUL OF ESTIMATES OF TIME, SPEED AND DISTANCE

Time, speed and distance often are the most crucial aspects of a lawsuit. Very often, witnesses are careless with regard to time, speed and distance. An inaccurate answer is usually the result of not giving the subject sufficient consideration. You may not appreciate how long ten seconds or a minute is until you have seen opposing counsel take his watch out before the jury and keep silent until that much time has gone by. (Try it.) The opposing attorney argues that you had that much time to do whatever act you have so testified to. If you had very little time to do an act, do not carelessly say you had longer than you did. Do not attempt to give opinions or estimates of time, speed and distance unless you have good reason for knowing such matters. If your answer is an estimate, say so. Carefully contemplate time, speed and distance before you answer. Do not give casual answers. In cases involving automobiles, it is helpful to remember that a vehicle travels approximately one and one-half times its speed in number of feet per second. This means that if an automobile were traveling at 20 m.p.h. it would travel approximately 30 feet per second.