How To Prepare For A Deposition

By Toni-Ann M. Buono, Esq.

During litigation, whether you are a physician, a business owner, or simply a non-party witness, there will likely come a time that you will be faced with having to testify at a deposition.  In Part One of this series, we explained what a deposition is and what to expect during a deposition.  This article will explain how to effectively prepare for your deposition with your attorney. 

First and foremost, you should have a clear understanding of all facts pertinent to your case if you are a plaintiff or a defendant.  If you are a third-party witness, in conjunction with your lawyer, you should review all documents and communications relevant to the pending case and all matters outlined in the subpoena or deposition notice you received.  Your lawyer should meet with you in person to prepare you in advance of your deposition.  As you will need time to digest the information and continue to prepare, the in-person meeting will likely take place days or weeks before the scheduled date of the deposition.

 During your in-person meeting with your attorney, they will discuss with you what to expect and the procedural posture of the case.  It is also likely that your attorney will go through a series of questions that they anticipate the attorney conducting the deposition will ask you.  This is important because it allows you an opportunity to phrase your answer appropriately and to be certain that you are supplying the precise amount of information the answer requires.  Often times, once a witness becomes comfortable with the discussion, he or she will elaborate on matters either irrelevant to or outside the scope of the question posed.  Your attorney should prepare you to listen closely to the questions asked, so you are able to respond accordingly.

If you are a plaintiff or defendant, during the meeting, you may also review documents with your attorney.  These documents could include the pleadings in the litigation (i.e., Complaint or Petition, Answer and Reply), written discovery questions (i.e., Interrogatories), documents produced during discovery, affidavits, previous testimony, photographs, recorded conversations and correspondence.  However, be mindful that the review of documents should be in consultation with your lawyer.  You should be clear with your lawyer what you reviewed prior to your deposition.  This is important because one question that you will certainly be asked is: “Have you reviewed any documents in preparation for your deposition?”  If you have in fact reviewed documents in preparation, the attorney conducting the deposition will go through a series of questions inquiring as to which documents you reviewed, why you reviewed each document, and how you obtained a copy of each document.  Likewise, you should advise your attorney if you have spoken with anyone or intend to speak to anyone about the case or your upcoming testimony.  You will also be asked in detail about those conversations. 

It is also important to note that your attorney may tell you not to review certain documents or information that may be extraneous to your knowledge.  For example, if you are a business owner with an unfair competition claim, reviewing the financial statements of the competing business you are litigating against may subject you to questions regarding your understanding of accounting matters, which may be outside the scope of your expertise.

Lastly, even if uncomfortable, it is vital that you make your attorney aware of all relevant facts and circumstances surrounding the case that may be negative to your position or to you personally.  While you may be anxious to share certain information with your attorney, that information will remain privileged and may be helpful during your preparation session.  Indeed, your attorney may prepare you for certain uncomfortable questions and assist you in formulating a response.     

It is critical that you continue to prepare following your meeting with your attorney.  You should review all documents that you examined with your attorney, think about how you will answer certain questions, and the impression you want to make.  If you are unsure how to answer a question truthfully, have any reservations about your upcoming testimony, or remember anything that you did not discuss with your attorney, be sure to consult with your attorney prior to the day of your deposition.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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