Most people know what cross-examination is – it’s when a lawyer questions a hostile witness under oath. A deposition is a procedure to do this out of court before a trial. Depositions are common in personal injury cases. You need to know how to handle one in case the opposing party seeks to depose you. You might also need to depose the other side’s witnesses.
How Pretrial Discovery Works
Even if you ultimately seek to settle your case, you might want to file a lawsuit – if for no other reason than to beat the statute of limitations deadline (four years after an accident for most negligence claims in Florida).
To initiate a lawsuit, you must file a formal complaint. A third party will personally deliver it, plus a summons to court, to the defendant. You win a default judgment if the defendant fails to respond by a certain deadline.
You can commence the pretrial discovery process if the defendant files a formal answer. Pretrial discovery is a court-supervised process whereby each party gathers evidence from the other party. The deposition is one of the four main procedures you can use for pretrial discovery. The other three are:
- Interrogatories: Questions that the opposing party must answer in writing.
- Demands for production: Demands to inspect or obtain a copy of physical evidence-–photographs, documents, etc.
- Requests for admissions: A request that the other party admits to certain minor facts that you don’t want to bother proving.
The results of pretrial discovery, including depositions, can tilt the case in favor of one party or the other. This can encourage the parties to settle the case.
When, Where, and Who
Here are some of the specifics of depositions:
- When: After the lawsuit is filed but before a trial is scheduled.
- Where: Depositions are typically held in the office of the lawyer who represents the party who demanded the deposition. If you wish to depose the defendant’s expert witness, for example, the deposition will probably take place in a conference room in your lawyer’s office.
- Who: The participants in the deposition will include lawyers for both sides, the witnesses who will answer questions, and a court stenographer. One noticeably absent party (probably) will be the judge.
At a deposition, the attorney may ask any reasonably calculated questions that may lead to admissible evidence. Even so, at trial, the judge can exclude the stenographer’s record of any improper questions from evidence.
How To Handle Yourself at a Deposition
It’s not enough to have the truth on your side. You need to know how to handle yourself under the extreme pressure that a cross-examining attorney can put you under. The attorney knows how to trip you up, how to get you to change your story, and how to exploit even minor inconsistencies in your testimony. Following are some tips on how to handle yourself:
- Stick to the truth. Lies are complicated, and it’s hard to remember what you said. Plus, lying under oath can get you sent to prison.
- It’s best that you practice your responses in a rehearsal with your attorney, who can play the role of cross-examining attorney. Make sure your attorney is tough on you because you can be sure the opposing party’s lawyer will be.
- Listen carefully to all questions, and don’t answer anything the attorney didn’t ask you. Volunteering unsought information is like handing the other side a gift.
- Demand to see any document the cross-examining attorney questions you about. Don’t testify about it until you have thoroughly examined it.
- Don’t let the attorney ask you leading questions such as “Isn’t it true that…?” Bring your lawyer with you so they can tell you which questions you are safe refusing to answer.
- Answer according to what you know based on personal experience. If you really don’t know, “I don’t know” is a perfectly acceptable answer as long as it’s true.
- Don’t respond nonverbally, such as with a nod of the head. The court stenographer cannot record nonverbal gestures.
- Don’t lose your cool. The opposing attorney might try to anger you because angry people say things they don’t mean. Don’t give the opposing attorney that satisfaction.
- Don’t let the cross-examining attorney bully you. If you do, you will end up saying exactly what they want you to say.
- Avoid storytelling. Facts usually don’t arrange themselves into neat little stories, but it is human nature to try to fit facts into a narrative. This is how you might tell a lie without even realizing it.
Most of these same principles apply to testifying at trial if your case makes it that far.
Don’t Try To Handle This Yourself
Taking the deposition of a witness requires a lot of skill and experience. Responding appropriately to a cross-examining attorney also takes skill. It is certainly not the kind of activity that a non-lawyer should attempt. If you think you need to take or respond to a deposition, contact a Clearwater personal injury attorney at Roman Austin Personal Injury Lawyers for a free initial consultation by calling (727) 787-2500.