During the deposition, attorneys from each side ask witnesses a series of questions. For example, in a car accident case filed by a plaintiff, an attorney for the plaintiff may ask the defendant a series of questions. The questions during a deposition are “who, what, when, where, and how” questions.”
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During the deposition, an attorney may ask a question that both sides had agreed was improper (e.g. relevant, or leading). The other attorney may make an objection. The objection often prompts the asking attorney to withdraw the question. In some instances, a dispute may develop over whether a witness must answer a particular question.
In some instances, your client’s deposition can be the demise of your case. Yet, many of us view deposition preparation as a low priority exercise and are content if we can simply get our client to give testimony that does not harm our case.
- Once the preliminary discussion concerning objections is complete, you will need to prepare the client for the deposition. This preparation will require an initial conference with the client. At the conference, your supervising attorney explains the deposition process to the client and reviews anticipated areas of questioning.
And attorneys are well-advised to avoid discussions about that testimony with their client-witness during breaks or recesses. However, depositions are often treated more informally than trial testimony.
How to Handle a Deposition: Advice from an OMIC Defense AttorneyTell the truth. ... Think before you speak. ... Answer the question. ... Do not volunteer information. ... Do not answer a question you do not understand. ... Talk in full, complete sentences. ... You only know what you have seen or heard. ... Do not guess.More items...
CONSEQUENCES OF REFUSING TO ANSWER DEPOSITION QUESTIONS They may even obtain monetary sanctions against the deponent for a refusal to answer (source).” Monetary sanctions can include but are not limited to court costs and attorney fees.
What Should I Do If I Object to a Personal Question During the Deposition? The deposing attorney can ask any question he or she likes, but you do not necessarily have to answer them. If you believe that the attorney has asked an irrelevant question, you can object to the question, or ask your attorney how to proceed.
At a deposition of a witness or defendant called by a plaintiff's attorney, the plaintiff's attorney bears the burden of getting the information out of the deponent. The deponent is only obligated to answer the questions that are asked, and no more.
Good ways to say anything but "No Comment" to questions you really don't want to answer:"I'm sorry but I'm not able to speak to that subject""Thanks for asking but I'm not able to answer that question""I'm sorry but that information is proprietary"
If you refuse after being ordered by the court to give a deposition, you would likely be found in contempt of court, leading to dire consequences. On top of that, you would still be forced into the deposition.
Common questions in this vein include:How did you prepare for this deposition?Have you spoken to anyone other than your counsel about this case? ... What, specifically was discussed?What documents pertaining to the case have you reviewed?Did you meet with counsel for the other side prior to this deposition?More items...•
A Consolidated List of Proper Deposition ObjectionsHearsay. You're free to object to a question of hearsay during a trial. ... Assume facts, not in evidence. It depends. ... Calls for an opinion. ... Speaking and coaching objections. ... Privilege. ... Form. ... Mischaracterizes earlier testimony. ... Asked and answered.More items...
No. You have the constitutional right to remain silent. In general, you do not have to talk to law enforcement officers (or anyone else), even if you do not feel free to walk away from the officer, you are arrested, or you are in jail. You cannot be punished for refusing to answer a question.
You have a right to refuse any questions about a person's health, sexuality, or religious beliefs (including your own). The opposing attorney will have to explain how your answer has a direct bearing on the case in order to compel you to answer. Privileged information.
Here are a few things to pay attention to while you are giving your deposition.Never Guess to Answer a Question. ... Avoid Any Absolute Statements. ... Do Not Use Profanity. ... Do Not Provide Additional Information. ... Avoid Making Light of the Situation. ... Never Paraphrase a Conversation. ... Do Not Argue or Act Aggressively.More items...•
Yes, you can plead the fifth in a civil trial or deposition. But, whether you should or should not do so is often an issue that requires you to waive certain risks and benefits. If you refuse to testify in a civil matter, there can be adverse consequences for the case.
Under Rule 30 (c) of the Federal Rules of Civil Procedure, the examination of a witness at a deposition is to “proceed as [it] would at trial.” FRCP 30 (c) (1). At trial, it is clear that a witness may not confer with counsel during his or her testimony. And attorneys are well-advised to avoid discussions about that testimony with their client-witness during breaks or recesses. However, depositions are often treated more informally than trial testimony. Objections are limited to form, privilege, and harassment, and counsel and client often discuss the deposition during breaks or recesses. But, at least according to some courts, the same rules that apply at trial should apply during depositions. That is, discussions between witness and attorney should not take place, and if they do, the content of those discussions may be discovered by opposing counsel.
In Tennessee, the attorney-client privilege protects from discovery communications between an attorney and client that were made in confidence for the purpose of obtaining legal advice. T.C.A. § 23-3-105; Johnson v. Patterson, 81 Tenn. 626 (1884). However, the privilege is not absolute, and not all discussions between an attorney and his or her client will be protected. Boyd v. Comdata Network, Inc., 2002 WL 772803 (Tenn. Ct. App. 2002).
Nevertheless, Tennessee attorneys should not assume that conversations with their clients during breaks in depositions will fall within the attorney-client privilege. And they should definitely avoid asking for breaks when a question is pending for the purpose of discussing that question with their client.
In most cases, all of the elements required to assert the attorney-client privilege are present. However, several courts have held that the privilege does not apply in these circumstances, and opposing counsel may inquire into what was said between the witness and his or her attorney. II.
Some jurisdictions have adopted local rules to address whether witnesses may confer with counsel during depositions. For example, under New Jersey Court Rule 4:14-3 (f), “ [o]nce the deponent has been sworn, there shall be no communication between the deponent and counsel during the course of the deposition while testimony is being taken except with regard to the assertion of a claim of privilege, a right to confidentiality, or a limitation pursuant to a previously entered court order.” While this rule on its face does not directly address breaks during depositions, one New Jersey court has held that there may be no discussions between counsel and witnesses, even during recesses, until the deposition concludes for the day. In re PSE & G Shareholder Litigation, 320 N.J. Super. 112 (N.J. Super. Ct. 1998). However, the court preserved the witness’s right to confer with counsel in order to prepare for the next day’s deposition. Id.
Don't let tension impact your statements. When being verbally confronted during a deposition, you may be tempted to blurt out a statement you may later regret. "Do not let the opposing attorney get you rattled by intimidation.
Don't answer a question unless it's asked, and never give more information than asked for, says Eberhart. However, it won't help your case if you are evasive and fail to answer the question being asked. "That type of deposition may raise suspicion and make the other side dig further," she says.
In order to prepare your client for a deposition, you have to know the key issues of your case. You cannot effectively prepare your client and your client cannot be an effective witness unless you have an understanding of what both you and your opponent are trying to prove.
Instruct your client not to guess or speculate but to testify only from personal knowledge. Explain the difference between a guess and an estimate. Make sure your client knows that a deposition is not a memory test and that “I do not know” or “I do not recall” are perfectly acceptable answers.
No matter what type of case you are handling, and regardless of whether you are representing a plaintiff or a defendant, one of the most significant events in any case is a client’s deposition. A client deposition can affect a case in many different ways. If your client performs poorly, this may impede your ability to prove your case, ...
In some instances, your client’s deposition can be the demise of your case. Yet, many of us view deposition preparation as a low priority exercise and are content if we can simply get our client to give testimony that does not harm our case. This, for obvious reasons, is not the best approach.
Typically, opposing counsel will object to taking a break in the middle of a question. However, you should instruct your client to always ask for a break if a question may cause her to reveal privileged or confidential information so that she can discuss the issue with you before answering.
Deposition testimony that is inconsistent with prior statements can lead to un comfortable cross-examination at the time of trial, not to mention hurting your client’s credibility and your ability to prove your case. You should also review relevant discovery responses with your client for the same reason.
You should also review relevant discovery responses with your client for the same reason. Ask your client the key questions you anticipate will be asked by opposing counsel and listen to how your client responds. Simply discussing questions without engaging in a mock question and answer session often is not enough.
The Hall court permitted attorney-client deposition conferences only for the purpose of determining whether to assert a privilege–conferences for any other purpose were not privileged, at least as to what was said by the lawyer to the witness. Id.
Though there is no definitive case law from Virginia state or federal courts, the best practice appears to be to avoid attorney-client communications – particularly regarding the subject matter of the witness’s testimony – during the pendency of a deposition.
The court noted that though a lawyer has a right, if not a duty, to prepare a witness, once a witness begins his or her testimony – whether at trial or in deposition – “that witness is on his or her own.”. Id. at 528.