Surviving a Deposition in South Carolina – A Witness’s Guide

Because our lawyers in Charleston, South Carolina handle auto accident claims, personal injury lawsuits, and family law cases such as divorces, we’ve been involved in hundreds of depositions. If you’re ever involved in a lawsuit, whether it is a divorce in family court or a personal injury claim in civil court, you too may be required to participate in a deposition.

What is a Deposition?

A deposition is testimony that is given under oath. Under oath means that the person who is testifying is sworn, under penalty of perjury, to tell the truth. During the deposition, lawyers will ask questions of the witness, and the answers are recorded by an official court reporter. Later, the court reporter prepares a written transcript of everything that is said during the deposition. Depositions can also be video-recorded.

There is little difference between testimony at a deposition and testimony in a courtroom except there is no judge there to rule on objections to the questions such as objections to hearsay testimony.  During a deposition, lawyers do not make these objections until later when a lawyer tries to introduce the deposition transcript (or portions of it) at trial. Otherwise, it is not uncommon to hear a lawyer object, during a deposition, to the “form of the question.” However, despite this objection, the witness still has to answer the question.

The Purpose of a Deposition

A lawyer takes a witness’s deposition for three (3) primary reasons:

(1) The first reason is to find out what the witness’s “story is,” and what it will be at trial.

(2) The second reason is to “pin down” the witness’s specific story so that the witness will have to tell the same story at the trial.

(3) Third, the lawyer may hope to catch the witness in a lie so that later the lawyer can convince a judge or jury that the witness isn’t truthful.

Preparing for a Deposition

(1) If you are a witness in a case involving an automobile accident, and you saw the accident happen, try to visit the scene again before the trial. Stand on all the corners so you will be familiar with the place. Close your eyes and try to picture the scene, the objects there, and the distances.

(2) If the case involves documents that you may be asked about, review the documents (such as contracts, emails, etc.) before you testify.

(3) Don’t try to memorize what you are going to say.  There is  no point in trying to “script” your testimony.

Pitfalls to Avoid in a Deposition

(1) Tell the truth.  You have sworn to tell the truth. Tell it. Don’t worry about whether the truth helps one side or the other.

(2) Don’t try to answer a question unless you know the answer. Take your time and think about the question.  If you don’t know the answer, simply say so.

(3) Answer the question and only the question. Keep your answers honest and to the point. Listen carefully to the question and answer only what the question asks.

(4) Wait for the question. In a normal conversation, you may start to answer a question before its done. Don’t do this in a deposition. Not only is it hard for the court reporter to type questions and answers when people interrupt each other, you may give an answer without knowing exactly what the question is.

(5) Finish your answer. You should finish your answer even if the lawyer asking questions tries to interrupt you before you have had a chance to finish your answer.  Experience shows that the best way to handle an interruption is for a witness to stick out the palm of his or her hand toward the questioner like a cop stopping traffic.  This works almost every time.

(6) Don’t try to answer a question unless you are sure you understand the question.  A deposition isn’t an intelligence exam. Also, no one expects you to understand a lawyer’s legal mumbo-jumbo. If you don’t understand, simply say so.

(7) Don’t be defensive when answering questions. For example, if the question is “Do you drink alcohol?” and the truth is you do, then simply answer “Yes” and then stop. A defensive answer would be “Yes, but only on social occasions.”  Here is another example to show the right and wrong way to answer questions (a witness, who is a woman suspected of having an affair with a married man, is asked):

Q. Did you ever have lunch with Mr. X?

A. [Wrong:] Yes, but it was always in public places.

[Right:] Yes.

Q Did you ever go out-of-town with Mr. X?

A. [Wrong] Only to Charleston.

[Right] Yes.  (then, if asked “Where?” should the witness truthfully answer Charleston.

Q. Did he ever buy you gifts?

A. [Wrong] Well, nothing expensive.  Nothing but a loaf of bread that he got me once on an out-of-town trip.

[Right] Yes.  (then if the questioner asks “What?” the witness may say “A loaf of bread.”)

(7) Remember, everything you say is being taken down word by word by the court reporter.  Don’t be chatty, don’t be sarcastic, and don’t be funny. Simply answer the questions put to you.

(8) If your answer was wrong, correct it immediately.

(9) If your answer wasn’t clear, clarify it immediately.

(10) Don’t make a promise during the deposition to give further information in the future.  Sometimes in the deposition the attorney will ask about paperwork or records that you don’t have with you. The lawyer may also ask if you will make the paperwork or records available for them to look at and copy. Although in everyday life, you may do small favors for people without giving much thought.  Don’t do this in the deposition.

(11) Don’t let the attorney get you angry or excited.  This destroys the effect of your testimony, and you say things which may be used to your disadvantage later.

(12) After the deposition, don’t chat with the opponents or their attorneys.

(13) Avoid saying “To the best of my recollection,” “I think,” “I believe,” “In my opinion.”  Give positive, definite answers if at all possible. If you don’t know, say so, don’t make up an answer. You can be positive about the important things which you naturally remember. If asked about little details which a person naturally would not remember, it is best to just say you don’t remember.

(14) Avoid starting your sentences with “To be frank with you . . .” or “To be honest with you . . .”  This are nervous phrases people use which make the witness sound like they aren’t telling the truth. Of course you are going to be honest with the questioner; you swore an oath to do so.

(15) Don’t nod your head for a “yes” or “no” answer. Speak out clearly. The court reporter must hear the answer so that it can be written.

(16) If the question is about distances or time and your answer is only an estimate, be sure that you say it is only an estimate. Be sure to think about speed, distances, and intervals of time before testifying.

There are several questions that are “trick questions.” That is, if you answer them the way the other attorney hopes you will, he or she can make your answer sound bad. Here are a few of them:

(1) “Have you talked to anybody about this case?” If you say “no,” that is not right because good lawyers always talk to the witness before they testify. If you say “yes,” the lawyer may try to imply that you were told what to say. The best thing to do is to say very frankly that you have talked to whomever you have — lawyer, party to suit, police, etc. — and that you were just asked what the facts were.

(2) Don’t let the questioner “summarize” your testimony.  If the lawyer says, “So it is your testimony that . . . . blah blah blah (which means the questioner has tried to take the last thirty minutes of what you have said and squeeze it into a single sentence)?”  If you can’t summarize your testimony because you can’t possibly remember everything you have been asked and that a summary attempt would be incomplete, then just say so.

(3) “Have you told me everything you know?”  You may remember things after the deposition that you may want to tell a judge or jury at trial. When you answer this question, it is fair for you to say that you think you have told everything, but you can’t be sure.

Trial Lawyers in Charleston, SC

If you need an attorney in Charleston, SC for family court, DUI, criminal defense, or personal injury claim, then call Futeral & Nelson, LLC today.

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