Responding to Requests for Deposition Testimony

A civil trial is a structured process by which the facts of a case are presented to a jury or judge who decides whether the party being sued (defendant) is liable for the injuries suffered by the injured party (plaintiff). Evidence is introduced during trial, and witnesses are examined regarding the presented evidence. This evidence is gathered long before the trial during discovery, a formal process of information exchange between the parties to a lawsuit.

Discovery is designed to allow both sides to know—or discover—possible trial evidence to help them prepare their arguments. Attorneys use many methods of discovery in professional liability cases, such as requests for answers to interrogatories, requests for admissions, and requests for production of documents. One of the most common discovery methods is deposition. 

A deposition is a statement taken under oath from a person with knowledge of the case facts (deponent). The deponent could be a defendant, a witness to the event, or another individual with knowledge relevant to the case. Depositions give the parties to the case prior knowledge of what the witness’s testimony will be at trial. Depositions can also be used to preserve testimony if the deponent is expected to be unavailable for trial. 
 
Deposition testimony is taken under oath and recorded and transcribed by a stenographer at a location other than the courthouse. Attorneys for all parties are present during the deposition and can ask the deponent questions. There is no judge present during a deposition. 

A deposition can be arranged in several ways. The deponent may agree to appear on a specific date and time, or they may be served with a subpoena, a written court order that requires them to appear at a predetermined place to give testimony and/or produce documents or records. Regardless of the basis of the deponent's attendance, depositions are valuable discovery tools.
 

Risk Recommendations:

For most people, the prospect of giving a deposition is anxiety provoking. Knowing how to respond and prepare can reduce associated stress. Consider the following when responding to requests for and attending depositions:  

• Know organizational policy. Familiarize yourself with your organization’s policies and procedures regarding responding to legal requests, including deposition requests. Follow policy guidelines carefully, paying close attention to notification timelines and documentation retention guidelines.
• Notify legal or risk management personnel. Time is of the essence in responding to legal requests. If you are requested to provide deposition testimony, notify your attorney or risk management personnel immediately and await further instructions. Do not respond independently to the deposition request unless you have been advised to do so by risk management personnel or legal counsel. Forward the request and all documents you receive to the appropriate person. Attend all deposition preparation meetings arranged by your attorney or your organization’s attorney.
• Be prepared. You may be required to bring documents to your deposition (subpoena duces tecum). Work with your risk management representative or attorney to determine how best to prepare for your deposition and what to bring to it. Do not provide documents unless your attorney or risk management representative advises you to do so. 
• Review deposition tips. Providing deposition testimony can feel chaotic and confusing for those who have no experience with the process. The lawyers in attendance may object to the questions being asked, ask provocative or confusing questions, and have conversations among themselves during the deposition. When preparing clients for deposition testimony, attorneys will often provide guidance that includes the following:   
  • Be truthful and concise. Always be truthful and accurate in your responses. If you can’t remember something or do not know the answer to a question, say so. If you need to refer to documents or the medical record to answer a question, ask to do so. Don’t feel pressured to guess or speculate to produce an answer. 
  • Pause before you answer. The attorneys in attendance at the deposition may object to a question being asked of a deponent. If so, they must state their objection and the reason for it after the question is asked but before it is answered. Always pause before answering a question to allow the attorneys time to state their objection and have it recorded. 
  • Listen to the question. Ensure that you listen carefully to the entire question and consider what is being asked of you. Answer only the question that is being asked. Do not volunteer additional or extraneous information if it is not requested. 
  • Ask for clarification. It is important to understand each question. If the question doesn’t make sense or is confusing, ask that it be clarified or rephrased. 
  • Keep your demeanor in check. A relaxed, composed demeanor enhances your credibility, so resist the urge to get defensive or upset during your testimony. Maintain eye contact and remain calm, pleasant, and professional. If you need a break, ask for one. You do not need to provide a reason.

Depositions are an essential part of the discovery process, but they can be intimidating, nerve-racking experiences for a deponent. Good preparation can make the process less stressful.