What to Expect – At Depositions
A deposition is one tool in a lawyer’s tool box to find out information to prepare a case for settlement negotiations or for trial. A deposition is similar to interviewing a party, witness or someone with specific information about a case. The interview is done under oath, with a court reporter recording everything that is said by the lawyer asking the questions and the person giving the answers. The person giving the answers is called the deponent.
Sometimes there are documents that you will be asked to look at and explain. These are exhibits, just like exhibits in court. The document is marked by the court reporter and included with the transcript of the deposition.
Where does a deposition take place?
Usually the deposition takes place in the lawyer’s office who scheduled the deposition, but it can occur anywhere.
I was served with a Subpoena to take my deposition – now what?
A Subpoena is an official command to show up at a certain place at a specific date and time. Don’t ignore it. If you are a party to the case, usually your lawyer and the lawyer who issued the Subpoena will coordinate in advance to schedule the deposition at a time everyone can meet. If you are a witness (but not a party) and you cannot make the deposition at the time scheduled, call the lawyer who issued the Subpoena to try to reschedule the date and time.
Treat the deposition like you were going to court. Listen to the specific question asked and answer it truthfully to the best of your ability. Remember that everything you say is being recorded and you are testifying under oath. If you don’t know the answer or cannot remember, say so. Don’t guess.
Sometimes your deposition testimony is used in court. If you gave one answer at the deposition and a different answer in court, it makes you look like you were lying or misrepresenting the facts at one point in time or the other.
Can I bring my own lawyer to the deposition?
Yes. You have the right to be represented by an attorney at your deposition, but you have to pay your own lawyer. The party who scheduled the deposition is not responsible for paying your attorney’s fees.
Do I get paid to have my deposition taken?
If you are a party to the case, you do not get the witness fee. If you are a fact witness, then you are entitled to the standard witness fee of $95 in New Mexico. If you are an expert witness, then are you entitled to be paid your usual fee for testifying.
What if I don’t want to answer a question?
Basically, you have to answer the question. Unlike being in court, you or your lawyer can’t say “objection” and wait for the judge to decide if the question is allowed. There are a few exceptions to this rule. For example, confidential conversations between you and your lawyer are still subject to “attorney-client” privilege and don’t have to be answered. Also, you have the right to assert your Fifth Amendment right not to incriminate yourself (admitting you did something that could convict you of a crime). If there is a stalemate between the lawyers on whether you have to answer a question, sometimes a recess is called and the lawyers contact the judge to have a ruling made on the necessity of answering the question.
You may wonder how a particular question is relevant to the case. Depositions are part of the discovery process. Questions that may lead to relevant and admissible evidence are allowed, even if the question makes you feel uncomfortable or you feel it invades your privacy.
Should I waive “reading and signing” the transcript?
Once the deposition is transcribed by the court reporter, the deponent has the right to read it for accuracy. This is known as “reading and signing”. It’s your opportunity to make sure the court reporter heard you correctly and wrote down exactly what you said, but it’s not a chance to change the substance of your testimony. I advise deponents not to waive (skip) the reading and signing because this is sworn testimony and needs to be accurate.
Who pays for the deposition?
The party who asked to have the deposition taken pays the court reporter for his / her time at the deposition as well as preparing the transcript. Depositions are expensive and need to be agreed to by the client and his / her lawyer before taking place. A half-day deposition, with transcript, costs in the thousands of dollars, for the court reporter’s fees and your own attorney to attend the deposition.
The other side can purchase a copy of the transcript, but has to pay separately for it.