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by Michele McPeak Cromer
The Ins and Outs of Disposition
Many of times I have sat across the conference table from a first time deponent. In lay terms, that means a non-lawyer who is being questioned by an attorney in regard to a pending lawsuit. I receive a few calls a year from friends or acquaintances who are going to be deposed and nervously ask what to expect. I am always surprised by the number of educated and polished people who are nervous, intimidated, and/or worried. Accordingly, I thought a column dedicated to the ins and outs of a deposition was called for.
A deposition is simply a fancy word for describing a question and answer session under oath. If you are deposed, a court reporter will have you swear or affirm that you will tell the truth. You will then, most likely, sit in a comfortable conference room and be asked a series of questions by either the Plaintiff or Defendant’s attorney. The Plaintiff is the individual who has filed the lawsuit and the Defendant is the responding party. If you are not a party to the case, you have the opportunity to bring your own counsel to the deposition. You are encouraged to speak up if you do not understand the question, to ask for clarification and/or to take a bathroom break. You are also free to consult with your attorney at any time.
Picture if you will, one of the passionate and turbulent deposition scenes depicted on television or in the movies. These attorneys typically argue...tempers flare and the lawyers act as if they were trying a case before a jury. In reality, every once in awhile you run into one of those attorneys who takes a deposition as if he were before the jury, but this is typically not the case. A deposition is actually a fact finding mission. If you are a party to the lawsuit, you are required to appear pursuant to a Notice of Deposition. You are not subpoenaed and you are not provided with a witness fee. You are then asked questions by the opposing counsel. They want to assess your credibility, your demeanor, and the impression you will make on the jury. They also want to know what you have to say. As your attorney will tell you prior to the deposition, it is important that you are honest, but that you need not volunteer information. I advise my clients to simply answer the question posed. Make the attorney do her job. A deposing attorney is often delighted by a rambling deponent. It gives the questioning attorney time to think and often provides information for additional questions.
If you are not a party to the lawsuit, you can require a subpoena to appear for a deposition. You are also entitled to a nominal witness fee and mileage. If you refuse to comply with the subpoena, the Court can order you to comply. So appearing may be an inconvenience and an annoyance, but being a non-party, you have nothing to lose. So be honest, but relax.
I would like to tell you that most of my depositions are exciting and interesting. Unfortunately, that is not the case. I like to be the deposing attorney because of course, I consider all of my questions well phrased and relevant. I have sat through many a deposition by long winded attorneys asking everything from A-Z and then some. As long as the questions are relevant and do not seek to elicit any privileged communication between an attorney and client, those questions are permissible. A venti Starbuck’s Latte is necessary before a deposition with a painfully long winded attorney.
So for any of you out there who are facing your first deposition, either as a party to a lawsuit or as a subpoenaed witness...relax. It won’t be as bad as you think, nor will it be as exciting as you anticipate. It might be a good idea to consult with your attorney even if you are a non-party, particularly if you may have a financial interest or any interest in the outcome of the litigation. So....go to it...Happy Testifying!
