How to Handle a Deposition
Fewer things in life can be scarier than receiving a Notice of Deposition. Attorneys for both plaintiffs and defendants use them during the pre-trial discovery process to gather supporting evidence for their cases. Sometimes attorneys use the information they glean from the process to reach a settlement in civil cases or to arrange a plea bargain in criminal cases. Discovery comes in several forms. The most common is through the issuance of subpoenas for documents, written questions, and depositions.
A deposition is an oral statement from a witness obtained before a trial. Witnesses give their statements under oath, meaning they can suffer legal penalties if they lie. Cases based solely on legal issues rarely require depositions because witness testimony is irrelevant. Lawsuits, including personal injury and wrongful death claims, may use depositions to help recreate a complete picture of the events in question.
New Mexico law requires notices of deposition to be served at least 11 days before the date the witness must be deposed.
What to expect during a deposition
Giving a deposition is like testifying in court. Witnesses give sworn statements about the information they may have that pertains to a case. Unlike court testimony, there is no judge present. The only parties present include the attorney for the defense or prosecution who issued the notice, the attorney for the deposed (if they have one), and a person qualified to administer oaths. An official court stenographer also may attend to record the testimony, or it might be recorded electronically.
All present parties can ask questions of the witness. Lawyers for the deposed party cannot coach their clients on how to answer questions. Most depositions are considered hearsay and therefore inadmissible as evidence at trial. Exceptions for admission in court include:
- The person giving their sworn statement incriminates themselves.
- The person giving their sworn statement provides testimony in court that contradicts their deposition.
- The person giving their sworn statement cannot be available to testify at trial.
Sometimes attorneys request written depositions instead. In those cases, parties submit questions to the deposed in advance, and the person answers only those questions. Written depositions tend to be more affordable but less reliable than verbal depositions.
Tips for a successful deposition
Being deposed can feel like sitting in a hot seat. The more prepared you are for the event the more likely things will go smoothly. Here are some tips for priming yourself for the experience.
- Tell the truth
More than anything else you can do during a deposition, being truthful is the one thing that can save you from a heap of legal trouble later. Providing false testimony during a deposition is equivalent to lying while under oath in a courtroom. Equal penalties for perjury apply and can include jail time under New Mexico Statute 70-2-10. If you know in advance you may have information that can be self-incriminating, speak to your legal counsel about the best way to handle questions that relate to your involvement. While you can plead the Fifth during a deposition, it is not recommended. Doing so means you are stuck with your answer and must use it if later called to testify in court. - Hire an attorney
Even if you have done nothing wrong, it is in your best interest to bring legal representation to any actions taken during the discovery process. Even if you retain a lawyer only for the deposition, it is money well spent to ensure the protection of your legal rights. Meet with your attorney before the date you must give your sworn testimony to share any concerns you have about the process. Your attorney can prepare you by reviewing expected topics and sample questions. - Speak clearly
Inaudible responses like head shaking to indicate yes or no answers cannot be transcribed by a stenographer and do not show up on an electronic recording (unless it is a video recording). Be mindful of this and make sure you speak clearly when answering all questions so they can e recorded accurately. Never blurt out the first response that comes to your mind when questioned. Take a few minutes to think it over to ensure your answers reflect the information you wish to convey. If a question includes a misstatement of fact, you can ask for it to be restated or correct the misstatement during your response. Deposition examiners are not your friend. Do not let them trip you up into revealing more than you intend to say. - Never speculate
When asked a question about something to which you have no knowledge, do not be afraid to say you do not know the answer. Do not speculate and do not let them examiner bully you into making a statement. When in doubt, responding with “I do not recall” is your best plan of action. - Review exhibits
If the examiner asks you questions about a specific document, ask to see it before you answer. You have a right to review any exhibits to make sure you understand them and can legitimately answer questions about their relevance to a pending case. If documents do not look familiar or you notice an issue with them, do not be afraid to speak up and do not answer questions about the document until your concerns are addressed.
Protect your rights during a deposition
Hiring an attorney to represent you during your deposition is a wise move. They can prepare you for the experience before the day arrives and be at your side to ensure the protection of your legal rights. Whether you face being deposed for a wrongful death lawsuit or as part of the contesting of a will, having legal representation can make all the difference in the outcome. Call 505-944-1050 or contact us online to schedule a free consultation to discuss your impending deposition.