Glen Levine, one of the founding co-partners of the Law Offices of Anidjar & Levine, believes that everyone should be prepared when giving depositions. The following is a transcription of a YouTube video recorded on June 29, 2021. The dialogue has been edited for clarity.
What’s in this episode?
In this episode, Glen will discuss:
- How giving a deposition works
- What you should and should not say
- How to present yourself
- How your lawyer can assist you
- What questions you are required to answer
- What happens if you make a factual error
- How to ask for clarity during the questioning process
Levine: We’re going to help you prepare for your deposition, which is going to happen tomorrow. And so we’re going to go through some ground rules and some things to help you prepare so that we can give the best possible deposition in your case, okay? Have you ever given a deposition before?
Witness: No, I haven’t.
Levine: Well, you’re going to do great. A deposition is basically a question-and-answer session, where the lawyers for the other side are going to be asking you questions about your case, about your life, about your injuries, how the injuries have affected your life. So they’re going to go through a whole interview with you asking about basically your case, okay?
At the end of the deposition, the lawyer who’s taking your deposition is going to be filing a report to the insurance company, and that report can say, “Well, we took the witness’s deposition, and they were really truthful and credible and likable,” or the letter might say, “We took the deposition, and the witness was evasive and didn’t answer the questions and dishonest, and they weren’t likable.” And for us, what we want, the goal is for that first letter to be written, right?
It’s not that we want the lawyer to want to have dinner plans with you, right? But it’s important to understand that at the end of this case, if we can’t get it resolved, there’s a jury trial. And one of the things that the defense lawyer is going to be doing is analyzing how your jury appeal will be.
And that is likeability, that is credibility. And so, if they report back to the insurance company that you’re likable and credible and honest, then it’s much more likely that we’ll be able to get you a successful settlement, as opposed to going to trial. They’re going to want to get rid of you because you’re too nice, okay?
Witness: Okay.
Levine: So keep in mind your attitude, your personality––it needs to shine through, okay? So I know you’re nervous.
Witness: Yes.
Levine: And you haven’t given a deposition before, but just take a deep breath, and if you follow the ground rules that we’re going to go over today, you’re going to have the tools to do great.
How should you present yourself during your deposition?
Levine: A couple of things just to keep in mind about the deposition: who’s going to be there, what to bring, what should you wear–– those types of things. First of all, you’ll need to bring your driver’s license because the court reporter is going to want to verify that you are who you are. Whether we’re doing this on Zoom, you’ll hold it up to the camera, or we’re doing it live in person, they’ll need to see your ID, okay?
Wardrobe, what should you wear? I always tell people to dress like they’re going to a professional business meeting, or they’re going to a religious service. You want to look nice. We want to present and portray a good appearance, right? So it is important, we don’t want you to be wearing your Saturday beachwear, or your exercise wear, to come to a deposition, okay?
Who’s going to be there? Generally the lawyer from our office, okay? Either myself or one of the other litigators, the lawyer from the defense, the person who’s going to be asking you the questions, and the court reporter and yourself. Those are generally the people that will be there. It’ll be in a conference room. There’s no judge there to rule on any objections. It’s just the four of us.
And that’s basically who will be in the room during the deposition. At the beginning of the deposition, the court reporter is going to ask you to raise your right hand and take an oath to tell the truth. And that’s really the most important thing that you have to remember, is you’re under oath, and you have to tell the truth.
Witness: Okay.
Levine: Okay? So your answers need to be honest and truthful. We don’t want you to exaggerate. We don’t want you to guess because a guess is not a truth, right? I mean, it could be a truth, but it could not be a truth. So we want you to answer the questions that they are asking, and only the questions that they’re asking, okay? So let’s talk a little bit more about that, right?
You’re under oath, you need to tell the truth, right? But we want you to listen closely to the question that’s being asked of you and answer only those questions. It’s important to do that because this is not your day to get on your soapbox and tell your side of the story. That opportunity is at trial. This is the defense’s chance to ask you questions that they want to know.
So by keeping your answers short and to the point, we’re limiting the amount of information that we’re providing to them, okay? That could potentially come back to bite us in trial, right? And we’re just answering their questions, okay? We’re not giving them more information than they’re asking for.
Witness: Okay.
Levine: All right. “Yes,” “no,” “I don’t know,” are the three best ways to answer a question in a deposition, okay? That means you’re keeping it short and to the point. Listen to the question. If it’s a one-word answer, give a one-word answer. If it’s a yes/no question, give a yes/no answer, okay? Don’t give more explanation, right? If you hear yourself saying, “Well, yes, because––” or, “What color is the sky?” “The sky is blue.” Not: “It’s blue, but last week, it was raining, and it was dark out, and my car got flooded.” Just keep it to the point, okay?
If you don’t understand the standard question during the deposition, please ask for it to be rephrased, okay? It’s really important that if you answer a question that they’re going to assume you’ve understood it. Oftentimes lawyers, their head is three questions down, they may ask a bad question, or there may be a word in the question that you don’t understand. And so, if it’s something that you’re not sure about or you don’t understand, please ask for it to be rephrased.
Witness: Okay.
Levine: Okay? Also, wait for the question to be completed before you give your answer. Sometimes your mind is working faster than the lawyer’s mouth is working, and we want to make sure that you’ve understood and listened to the entire question. Take a moment of pause and then go ahead and give your answer.
“When you’re answering questions, you need to answer verbally.”
Witness: There will be a court reporter taking down everything that’s being said. It’s going to be typed up at the end of the deposition into a booklet. And you’ll see questions and answers on each page, and it’s important to keep in mind that this is basically your story. This is your version of what happened, okay?
So we want to make sure that the transcript is clear. When you’re answering questions, you need to answer verbally, right? You can’t shake your head, uh-huhs, uh-uhs, mm-hmms; those don’t come out clearly. Those are not words. If you say, “Well, it hurts me here,” or, “I was going this way,” you’re indicating something, the court reporter is going to type down “indicating…” but we won’t know where you’re indicating.
So you need to say, “It hurts in my left shoulder,” if that’s the area that’s hurting, or “I went to the right.” Whatever it might be, you need to verbalize what it is, okay? So if you answer, “Uh-huh,” or “Uh-uh,” the lawyer is probably just going to prompt you and say, “Is that a yes?”
And that’s your reminder to answer verbally, okay?
Witness: Okay.
Levine: One of the other things that we want to make sure in order to have a clear transcript is that you wait for the question to be completed before you give your answer.
Witness: Yes.
Levine: Right? If two people speak at the same time, it’s really difficult for the court reporter to give a clear and accurate transcript. So wait for the question to be completed and then go ahead and give your answer, okay?
Witness: Okay.
Levine: If you need a break during the deposition, just speak up for yourself, right? The deposition can take several hours. It depends. We’re not the ones who are asking the questions. The defense doesn’t give us a list of their questions. So we don’t ever really know how long it’s going to take. If you need a break, you feel yourself losing your focus, you need to use the restroom, you need to take a phone call, whatever it might be, ask.
Witness: Okay.
Levine: Once you’re on a break, please remember that the lawyers don’t turn off their ears, right? If we’re on a Zoom call, mute your microphone and turn your camera off. If we’re live and in person and you want to talk to me outside of the presence of the other lawyer, please let me know that, and we’ll find a private place to talk.
Witness: Okay.
Levine: Once we’re off the record, it doesn’t mean that everyone just turns their ears off, okay?
Witness: Okay.
Levine: Also, with regard to a break, we can’t take a break before the last question was answered, okay? Easy example, “What’s your name?” You can’t say, “I need a break.” The reason that they want to prevent that from happening is they don’t want you going out in the hallway and getting the answer from the lawyer.
I know you know your name, but if it’s a different question, obviously, just giving you an easy example to understand that. So you can only take a break after the last question’s answer. If you ask for the break, the lawyer may say, “Well, let me finish this question and then go ahead and take a break.” Okay?
Witness: Okay.
You can change your answer if you make a mistake
Witness: If I make a mistake or I say the wrong thing, can I change my answer?
Levine: You absolutely can fix it. If you make a mistake during the deposition, and you realize that during the deposition, simply say, “You know, I remember I answered a question a couple of minutes ago, and I think I answered it wrong. I’d like to make a correction.” And you’ll simply say it on the record, and the lawyer may have some follow-up questions about whatever the correction may be.
At the end of the deposition, the court reporter is going to ask you whether you want to read the transcript and make any changes once it’s typed up, or if you waive that right, okay? We always advise our clients, and we’ll tell you that at the end of the deposition, that they want to read it.
What that does is it provides you an opportunity to review the transcript, making sure that A) the court reporter took down everything accurately and B) if you’ve made a mistake, you can make a correction on a separate sheet called an “errata sheet,” and that goes along with the transcript and it changes or updates your testimony. So, that’s really important. Do you have any other questions for me?
Witness: Yes, if I don’t understand a question, can I ask you for help during the deposition?
Levine: If you don’t understand the question, the best thing you could do is ask the lawyer who’s asking the question to clarify it. I’m not allowed to help you answer your questions. I’m not a witness in your case, and I’m not allowed to provide information to you to answer the question.
I don’t want you to digging in your phone or looking at your files or trying to investigate an answer in the middle of the deposition. If you know it in your head, give the answer. If you don’t, then just say, “I don’t know,” or, “I don’t remember,” but I can’t answer any questions for you or explain what the question means. If you don’t understand the question, please ask the lawyer who is asking the question to rephrase it or clarify it, okay?
Witness: Okay.
We can raise objections during your deposition
Levine:I wanted to talk to you about objections. During the deposition, there’s no judge there. So there’s no one there to rule on objections, but we generally will make two types of objections during the deposition.
One would be what we call a “form objection,” and the other objection would be to something that may be privileged. So let me cover them one at a time, okay? A form objection is simply an objection to say to the lawyer or signal to the lawyer that there’s a problem with the mechanics, the way that they’ve asked the question and the objection will be made in one of the following ways: object to the form or a shorter way of saying that is just form.
Sometimes the deposition is going quickly, and we just want to get our objection out. You will still answer the question if there’s a form objection. And basically, what we’re doing is giving the other lawyer an opportunity to re-ask it or clean up the question, okay?
Witness: Okay.
Levine:The other type of objection is a privilege, okay? And privilege covers many different things, but the most probable or the privilege that may come up in this case is what’s called the “attorney-client privilege.” And attorney-client privilege means that we enjoy a privacy in terms of you as a client, me as the lawyer, and that they cannot find out anything that we spoke about, okay?
So they can’t ask you, “Well, what did you talk to Levine about the day before the deposition?” or, “What did your lawyers tell you?” They can’t ask any of those types of questions. The privilege doesn’t just extend to me as the lawyer. It extends to everyone in the office: legal secretaries, paralegals, other lawyers, everyone who has dealt with your case in the office. Those conversations are private and protected, okay?
So I will anticipate generally if there’s a privilege or they’re asking a question that may reveal privileged information, but I’ve not been present at every conversation that you’ve had with my office. If you think that one of the questions or one of the answers requires you to reveal privileged information, then you need to basically say, “I don’t know how to answer this, because it may deal with my attorney.”
And at that point, we’ll take a break, and we’ll figure it out, okay? When there’s a privilege objection, you will not answer the question, okay?
Witness: Okay.
Levine: If there’s a disagreement, then we will have to go in front of the court and have the court determine whether you’ll have to answer that question at a later time, okay? Basically, we’ve covered everything. Do you have any other questions?
Witness: Do I have to answer every question? If something makes me feel uncomfortable, do I have to answer it?
Levine: So, you have to answer all the questions unless I tell you not to, okay?
Witness: Okay.
Levine: Generally, in a deposition, they’ll ask you questions that are either relevant, need to have some relevancy to our case, or could lead to relevant information. The rules allow for a pretty broad spectrum of what they can ask. So you may have that little voice in your head say, “Well, why aren’t they asking me this, that, or the other thing?” And I generally tell clients not to get too carried away with that, and that may distract you from the task at hand.
If there’s something that is really private or really off-base, then say, “I’m not comfortable answering that question.” And we’ll have a discussion off the record about whether it’s a question we want to answer or not. If we refuse to answer a question, eventually, the judge is the one who’s going to determine whether or not that question should be answered.
And if we refuse in a way that’s not justified, we could face a sanction for that, but that’s pretty rare. So, if we feel justified in our refusal to answer the question, I’m perfectly comfortable saying that, but it’s pretty rare to not answer the question.
Most of the questions and most of the people asking the questions are going to be respectful of you and of your privacy. But understand that this is an injury case, and we’re putting you and your life forward as the case. So they’re going to ask you questions that may be personal, okay?
Witness: Okay.
Levine: Okay. So I think we’ve covered everything. I’m going to be right there with you, okay? The most important thing to make sure we have a great deposition is to follow the rules that we’ve covered, short and to the point, yes, no, I don’t know, tell the truth, don’t guess, don’t exaggerate. You’re going to do great. At the end of the deposition, you’re going to feel much better, and we’re going to keep carrying on with your case.
Witness: Okay, thank you.
Levine: Thank you.
