Before lawyers start law school, they mostly believe a tort is a type of dessert. After graduating law school, that word has a new meaning—a negligent act making a person or entity liable under tort law. All professions have terms of art and/or legal jargon, and the legal profession is no exception. However, lawyers often forget their client’s may not have an understanding of the particular ordinary word that has a unique legal meaning, such as the word “discovery.”
Ask the average person on the street what discovery is, and their answer is likely to range from “finding something” to “a channel on television or cable”. Like a tort, discovery has a very specific meaning to lawyers. Discovery1 is a way to get information from a party or thirty-party to potentially be used to aid in the litigation. This blog focuses on the specific discovery tool of a “deposition” upon oral examination.2
The place to start with preparing for a deposition is with understanding what it is and the process. In a deposition, a deponent (the person who is being deposed) will typically meet at a court reporter’s office and be deposed in a conference room or one of the offices of the attorneys. In small towns and counties with low population, the deposition may occur at the courthouse or local library. The location for a deposition does not matter. However, it is important who is present for the deposition. This includes the deponent and his or her attorney, the opposing side(s) in the domestic litigation, with counsel and a court reporter.
The deposition may simply be recorded and typed by the court reporter (in a form of shorthand using a special machine) and/or videotaped. A deposition begins with the opposing party asking identification questions of the deponent, such as name, address, and phone number. This clearly identifies the deponent. From there, the attorney (opposing side) may ask any question reasonably calculated to lead to the discovery of admissible evidence, not just admissible evidence.
The controlling rule limits discovery questions as follows: “It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”3 Thus, the scope of questions an attorney for an adverse party may ask is quite broad. An example of a question that might NOT be reasonably calculated to lead to admissible evidence and objectionable is what brand of shoes you have worn to the deposition?
During the course of the deposition, your attorney may object to any number of questions. However, you can still answer if you know the answer to the question. The objection is to preserve the record deposition in the unlikely event it is used in court should you become unavailable to testify at trial, although those depositions are typically conducted differently if it is known it will be used in lieu of live trial testimony. These are not necessarily “discovery” depositions (but this is beyond the scope of this blog to address).
The only time you would not answer a question is if your attorney objects and instructs you not to or you assert a privilege to answering, such as asserting your Fifth Amendment privilege against self-incrimination, as you are making a statement under oath and penalty of perjury. This could occur in any domestic deposition if there are criminal matters that have not been charged but exist; you should speak with your counsel well before the deposition to be adequately prepared when this question comes.
This noted, there are a few answers that apply to most questions you are asked during a deposition: “yes”, “no”, “I don’t know”, or “maybe”. Resist the temptation to over-explain yourself as the nature of human language is such that the more words your state, the more likely it is that you will appear to, or will, contradict yourself and lose—at a minimum—credibility as a witness. If the question is a hard one where your answer will not fully elucidate the matter, your attorney can ask you questions once the questions of the adverse party are answered to clarify any question or area of questioning.
This noted, do not answer a question you do not understand and ask for clarification to the question. Furthermore, do not speculate. If you do not know the answer, do not give it your best shot and guess. This is a recipe for disaster later in the litigation. While this blog has touched upon uncharged criminal acts, there may be “skeletons” in your closet that you think the other side would never tell their counsel and they would not go there. They will. The first place your attorney should hear about “skeletons in your closet” is from you in a confidential context, not during a deposition.
The other common part of a deposition may involve you being shown any number of documents and then asking you about them. Again, do not speculate. Answer the question as simply as you can, if you know the answer, knowing your attorney can ask follow-up questions if your answer does not reflect a complete answer or clarification is needed. When all is said and done, the court reporter will ask you if you want to review the deposition and mark anything you claim is wrong on an errata sheet or waive review and signature. It is typically wise to review your deposition to make sure there was not a scrivener’s error made by the court reporter or incorrect translation.
This is preparation for a deposition in a nutshell. This blog was written by attorneys at Ciyou & Associates, P.C. who have conducted all types of depositions from those that are very short to those involving multiple parties across Zoom or other communication platforms with the attorneys and clients and deponents located in other parts of the state, country, or world. We hope you find this blog useful in preparing for your deposition. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes only. It is not intended to be applied to any specific legal situation, nor is it legal advice. It is an advertisement.
- Discovery is governed by Indiana Rules of Trial Rules of Procedure 26 through 37. The discovery process is nothing more than gathering information to prepare for litigation or lawsuit through various means.
- This governed by Indiana Rule of Trial Procedure 29.
- Indiana Rule of Trial Procedure 26(B)(1).
