During a deposition, if an answer comes to you as to a question asked earlier, you are perfectly entitled to go back to the previous question and provide an answer during the deposition. If the answer doesn’t return to you until after the deposition, you may provide the answer to the question through counsel.
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During the deposition, an attorney may ask a question that both sides had agreed was improper (e.g. relevant, or leading). The other attorney may make an objection. The objection often prompts the asking attorney to withdraw the question. In some instances, a dispute may develop over whether a witness must answer a particular question.
In some instances, your client’s deposition can be the demise of your case. Yet, many of us view deposition preparation as a low priority exercise and are content if we can simply get our client to give testimony that does not harm our case.
However, plaintiff’s application for fees was denied since counsel “could have called my chambers for a ruling during the course of deposition and could, therefore, have avoided the cost of motion practice.” There’s no dearth of helpful advice by lawyer-writers regarding the proper handling of deposition objections and attorney behavior.
The attorney may not “coach” the witness, either before the deposition or during it.To “coach” a witness is to tell a witness how to answer a question before the witness has had an opportunity to speak. A witness’s answer must be the product of their own thinking. The answer cannot be the product of the attorney’s influence.
How to Handle a Deposition: Advice from an OMIC Defense AttorneyTell the truth. ... Think before you speak. ... Answer the question. ... Do not volunteer information. ... Do not answer a question you do not understand. ... Talk in full, complete sentences. ... You only know what you have seen or heard. ... Do not guess.More items...
Deposition Process and GuidelinesTell the truth.Speak audibly.Talk slowly.Think before you speak.Do not volunteer information; answer only the question that is asked.Be professional and polite.Take breaks as necessary (usually one per hour)If you do not understand the question, then ask for clarification.More items...•
Here are a few things to pay attention to while you are giving your deposition.Never Guess to Answer a Question. ... Avoid Any Absolute Statements. ... Do Not Use Profanity. ... Do Not Provide Additional Information. ... Avoid Making Light of the Situation. ... Never Paraphrase a Conversation. ... Do Not Argue or Act Aggressively.More items...•
Give positive, definite answers when at all possible. Avoid saying, “I think”, “I believe”, or “In my opinion” if you can answer positively. If you do know, then say so. You can be positive about important things which you would naturally remember.
Deposition TipsBe prepared. ... Think before answering. ... Never volunteer information. ... Make sure you understand the question. ... You must tell the truth. ... Don't get rattled or upset. ... Don't guess. ... If you do not remember, say so.More items...
Common questions in this vein include:How did you prepare for this deposition?Have you spoken to anyone other than your counsel about this case? ... What, specifically was discussed?What documents pertaining to the case have you reviewed?Did you meet with counsel for the other side prior to this deposition?More items...•
9 Tips for a Successful DepositionPrepare. ... Tell the Truth. ... Be Mindful of the Transcript. ... Answer Only the Question Presented. ... Answer Only as to What You Know. ... Stay Calm. ... Ask to See Exhibits. ... Don't Be Bullied.More items...
“I don't know” is a perfectly good responses (as long as it's the truth). “I don't remember,” “I don't recall,” and “I don't recall at the present time” are all perfectly good responses. If true, the best is, “I don't recall at the present time,” because it makes it easier to change your answer if you later do recall.
You have a right to refuse any questions about a person's health, sexuality, or religious beliefs (including your own). The opposing attorney will have to explain how your answer has a direct bearing on the case in order to compel you to answer.
0:030:50Judge Masipa on how to answer questions in court - YouTubeYouTubeStart of suggested clipEnd of suggested clipYou don't you don't give an explanation. If the answer is yes you say yes if it's no you say no ifMoreYou don't you don't give an explanation. If the answer is yes you say yes if it's no you say no if you don't know you say I don't know. If you don't remember you say I don't remember otherwise.
In this section, we will discuss some basic tips on how to answer questions during a deposition.Always Tell the Truth. ... Listen to the Question in Detail. ... Only Answer Questions that You Understand. ... Dissect Any Compound Questions. ... Stand Up for Yourself During Questioning. ... Take Your Time Answering Deposition Questions.More items...•
Staying Calm, Collected, and on CourseTell the Truth – It helps to think of a deposition as nothing more than a discussion. ... Think First, Speak Second – Always consider the question and think over your answer before you speak. ... Keep It Short and Sweet – Your answers should be short, sweet, and to the point.
In order to prepare your client for a deposition, you have to know the key issues of your case. You cannot effectively prepare your client and your client cannot be an effective witness unless you have an understanding of what both you and your opponent are trying to prove.
Instruct your client not to guess or speculate but to testify only from personal knowledge. Explain the difference between a guess and an estimate. Make sure your client knows that a deposition is not a memory test and that “I do not know” or “I do not recall” are perfectly acceptable answers.
In some instances, your client’s deposition can be the demise of your case. Yet, many of us view deposition preparation as a low priority exercise and are content if we can simply get our client to give testimony that does not harm our case. This, for obvious reasons, is not the best approach.
Typically, opposing counsel will object to taking a break in the middle of a question. However, you should instruct your client to always ask for a break if a question may cause her to reveal privileged or confidential information so that she can discuss the issue with you before answering.
Deposition testimony that is inconsistent with prior statements can lead to un comfortable cross-examination at the time of trial, not to mention hurting your client’s credibility and your ability to prove your case. You should also review relevant discovery responses with your client for the same reason.
You should also review relevant discovery responses with your client for the same reason. Ask your client the key questions you anticipate will be asked by opposing counsel and listen to how your client responds. Simply discussing questions without engaging in a mock question and answer session often is not enough.
It is not an opportunity for your client to tell her side of the story. It is not a forum for your client to try to convince the opposing side or charm the opposing side or win the case. Explain that deposition is simply an opportunity for the opposing side to learn about your case.
What is a deposition and what does that mean for you, the witness? A deposition is the legal term for a formal, recorded, question and answer session which occurs when the witness is under oath. A deposition generally serves two purposes: (1) find out what you know; and (2) preserve your testimony for later use (either in motions to be filed with the Court or at trial). The person asking the questions, the examiner, will ask a series of questions aimed at obtaining information which will help his or her client prove their case. But what if you are not a party to the lawsuit? Doesn’t matter- the Indiana Rules of Trial Procedure allow parties to a lawsuit to take the deposition of any person twenty days after a lawsuit has been filed.
Doesn’t matter- the Indiana Rules of Trial Procedure allow parties to a lawsuit to take the deposition of any person twenty days after a lawsuit has been filed. Although being on the hot seat will certainly be slightly uncomfortable, if you keep these tips in mind, the deposition is likely to go smoothly. 1. Prepare.
Your job as the witness is to make the examiner ask good questions. If you do not understand the question, do not answer and ask the examiner to rephrase. If the examiner makes a statement and then pauses, you do not need to say anything. No question, no answer. A deposition is not a conversation.
Answer Only as to What You Know. Your response should be limited to what you saw, heard, or did. You can only answer to your perception or memory of a situation or series of events. You should not provide conclusions or opinions on a subject matter (unless you are serving as an expert witness).
If you are not a party to the lawsuit and do not have representation, retain an attorney for the limited purpose of defending you in your deposition. Prior to the deposition, meet with your attorney for a preparation session. Ask him or her to provide expected topics and go over sample questions.
Typically, unless waived, you will have the right to review the deposition transcript and correct any errors in your testimony when the transcript becomes available. 4. Answer Only the Question Presented. Your job as the witness is to make the examiner ask good questions.
The Court Reporter documenting the deposition strives to capture a complete and accurate recording of your responses. However, the Court Reporter cannot capture inaudible responses so it is imperative that you provide oral responses and avoid “uh-huhs” or inaudible head nods.
That booklet is called a transcript. That's your deposition transcript. In legal circles a deposition is also known as an examination before trial. When you bring a lawsuit, you put your medical condition in issue.
That means the defense is entitled to learn about you and your injury. They do this through a process called 'discovery'. What a trend-setting name. Discovery allows the defense lawyer to get copies of your medical records.
The stenographer is there to record all of the questions you are asked and all of the answers you give. Those questions and answers are transcribed and put into a booklet.
Not true. Every client talks to their attorney. Every client must be prepared for their deposition. The defense lawyer is just fishing for information. He's throwing his line into the water, not knowing what, if anything, he'll catch.
Regardless, the defense lawyer knows he will be unable to get a witness to talk about the conversation you had with your lawyer. He can learn that you had a conversation. That's fine. He will try and imply that something sinister is going on because you talked to your attorney before your deposition.
The defense lawyer must have a good faith basis to ask the question. He can't ask it just for kicks.
He may not be able to ask that same question at trial, but during a deposition, it may be fair game. Even if he gets an answer to a strange question, again, it doesn't mean he'll be able to use it later on at trial. You need to know that during this pretrial question and answer session there are two types of questions which you should NEVER answer.
Attorneys make objections to questions during a deposition for multiple reasons, including objections to the form of a question, objections related to relevance of a question or objections on the basis of hearsay. The deponent generally must still answer despite these objections. If an attorney objects based upon a privilege, however, ...
A deposition is an oral examination under oath taken during a lawsuit or other court proceeding. In most states, the person answering deposition questions, called the deponent, must answer every question unless the answer is protected by a privilege or a prior court order.
At the deposition, the court reporter asks the deponent to swear or affirm that she will tell the truth to the best of her knowledge. The court reporter will take down everything the deponent and the attorneys say in the deposition. When neither side has any additional questions, the deposition is concluded.
The attorney/client privilege exists as long as the communication at issue was not witnessed by any third parties who are not agents of the client or the client's attorney. For example, if a lawyer and a client have a conversation at the lawyer's office, and the lawyer's paralegal is listening, it is still a privileged communication because the paralegal is an agent of the attorney. However, if the conversation occurs in front of the client's friend or in the hallway of the courthouse in front of strangers, there is no privilege.
During a lawsuit, the parties engage in a process called discovery. During the discovery period, both sides make requests of the other side for documents, answers to written questions and oral testimony . The oral testimony is taken before a court reporter authorized to administer oaths, normally at the office of one of the attorneys in the case, ...
If an attorney taking a deposition asks the deponent to testify about a conversation the deponent had with his counsel, the deponent can refuse to answer the question based upon the attorney/client privilege.
The Federal Rules of Civil Procedure, which apply to all civil cases filed in federal courts, require deponents to answer every question unless the information is privileged or the court has previously ordered that the information cannot be revealed. A deponent may also refuse to answer if his attorney moves to limit or terminate the deposition based upon bad faith by the deposing attorney.
If your client does respond to an objectionable question, you need to state your objection on the record, your reasons for failing to object in a more timely manner, and move to strike the question and the response. Practical Tips for a Successful Deposition.
A successful handling of these circumstances depends upon your knowledge of the Florida Rules of Civil Procedure, predeposition preparation, and an awareness of possible ramifications from your actions. Your knowledge and preparation will give you confidence in your decisions and a justification for your actions.
The trial court denied the motion to compel and agreed that the deponent should not be required to answer improper leading questions asked during a deposition. The appellate court overruled the trial court and held that it was improper for the attorney to instruct the witness not to answer the leading questions.
Florida Rule of Civil Procedure 1.310 (a) states: “After the commencement of an action, any party may take the testimony of any person, including a party by deposition upon oral examination.”. Florida Rule of Civil Procedure 1.310 (b) (l) adds that a party wanting to take the deposition of any person shall give reasonable notice in writing ...
Instructing a Deponent Not to Answer. An attorney may not instruct a witness not to answer a question during a deposition. The Florida Rules of Civil Procedure provide no basis for an attorney to instruct a witness not to answer a question during a deposition. Comparatively, an attorney has the right to instruct a client not to answer questions ...
The Florida Rules of Civil Procedure and Florida caselaw make it clear that a party to an action may attend any deposition relevant to the lawsuit in which they are a party . If the plaintiff’s live-in boyfriend is not a party to the action, the results may be different.
The appellate court stated that the sequestration rule invoked in Dardashti has been invoked by caselaw but is not recognized by the Florida Supreme Court as a written rule. The court added that this rule is applicable at trial but not at deposition.
The last thing you want to do in a deposition is volunteer information to the opposing side’s counsel. The more information you give them, the higher the chance that they will use this information against you and harm your case.
This is perhaps the best piece of advice we can give someone going through a deposition. First of all, pausing allows the attorney to object. Note that a deponent should not object to questions; this is the attorney’s job. Second, this allows the deponent to make sure the question is complete.
Compound or double questions are not only confusing, but also not allowed in a deposition. Your attorney should object to such questions. The questioner is required by law to pose two separate questions in place of the single compound question to obtain the information sought.
Feel free to correct the opposing attorney on the record about any incorrect information implied by a question to create a clear record.
You cannot confer with your attorney while a question is pending, i.e., before you give an answer. If you need to speak with your attorney during the deposition, request a break or to use the restroom to prevent having the request to speak with an attorney on record.
Your attorney may object to a question in a manner that will assist in providing a clear and accurate answer. For example, if your attorney objects to a question on the basis that the question calls for speculation, this may cause you to consider whether or not you can accurately answer the question.
Unsurprisingly, lawyers like asking questions that can be answered by a simple “yes” or “no.” Of course, an answer isn’t always this straightforward. It’s important to explain your answer when required to clarify your yes or no answer
In Law Firm, the defense lawyer’s instructions not to answer because the hard drive was not authenticated were improper. The requirement of authentication is an aspect of “relevancy.”. But the Rules teach that instructions not to answer ...
Attorneys may not instruct a deponent not to answer unless the rules provide a basis for doing so. When a deponent refuses to answer a question, or is so instructed by an attorney, such refusal or instruction “shall be accompanied by a succinct and clear statement of the basis therefor.”.
Although the complex topic of deposition misbehavior is broad and the variants are many, the common thread running throughout the rules and the case law is: Let the Deponent Testify! With few explicit exceptions, the attorney should not interfere with the witness’s answers or the flow of the examination.
Attorneys are expected to instruct their witnesses on how to behave during questioning, as well as how to properly and confidently give answers . Unfortunately, as with most things, the way an attorney instructs his witness can have consequences.
Some lawyers try to skirt the line of propriety by giving their witnesses an improper “edge.”. Not only is this type of behavior completely unethical, it can also seriously damage a case and even cast doubt on the lawyer’s professional morality and competence. Common coaching tactics include…. Encouraging dishonesty.
You want your witness to project confidence and an air of trustworthiness for the jury. You also want his answers to help your case—or at least not help the opposing counsel’s case. In order to find a balance between all of these, you must put the time and care into preparing your witness.
It’s unethical to improperly influence or lead a witness into giving a false testimony. This includes knowingly presenting false evidence and misrepresenting facts to assist a witness’ false testimony. Falsely influencing other witnesses.
Although many layman would disagree, attorneys are ethical creatures. As professionals who uphold the law, they have strict codes of conduct when it comes to witness tampering and fraudulent behavior. Unfortunately, the boundary line when it comes to preparing a witness can be easily missed if you’re not careful.
It’s unethical to assist or counsel a client to engage in felonious conduct or behavior that you know knows is fraudulent. Drafting testimony. It’s unethical to provide a script or specific terms or phrases for the witness to say (or not say) in order to misrepresent facts. Baiting.