Preparing for a Deposition - Part III: The Process

Don't miss Part I, which covers your rights when scheduling and traveling a deposition, Part II, which covers the participants and preparation, and Part IV, which covers how to handle questioning.

The deposition begins when the court reporter administers an oath requiring you to tell the truth, the whole truth and nothing but the truth. Once you are sworn, the attorney conducting the deposition should go over the mechanics with you. If they do not, ask them to. You and your attorney should not assume anything when it comes to the deposition process. Everything is recorded by the court reporter, and if there is a dispute as to the process the only documents the Court will look at are the deposition transcript and accompanying exhibits. Therefore, have the attorney outline the depositions mechanics at the beginning.

Standard process for a Massachusetts deposition is as follows:

1. Only one person can talk at a time. If the attorney is asking you a question, even if you can anticipate what the question will be, let them ask their whole question for the record. The court reporter cannot type two people talking simultaneously. Therefore, you need to let the attorney ask their entire question and then provide your response.

2. Your answers to the attorneys questions must be verbal. Do not use hand gestures, nod your head up-and-down for yes (or side-to-side for no) or use non-words (i.e., ah-ha, um-hmm, etc.). If you do not provide a verbal response, the attorney should prompt you to do so. Again, the court reporter is typing out what you say, therefore if you do not use words then there is nothing for them to type.

3. An important rule is to ask for clarification when you are confused by, or do not understand, a question. If the attorney asks you a question and you answer, then everyone will assume that you understood the question being asked. After the deposition, it is difficult to explain that you answered a question but did not understand it. It is important that you understand exactly what the attorney is asking before you respond. If you need clarification or a question repeated, ask the attorney.

4. Another important rule is to never guess. If you do not know the answer to a question, tell the attorney. Once again, if you provide an answer it is difficult to later explain how you were just guessing. It is important to only answer with information that you know and never guess.

5. If you need to take a break for any reason (i.e., use the restroom, get a drink of water, speak with your attorney, etc.) request a break. You are not a prisoner at a deposition and you have a right to take a break. Keep in mind, if you have been asked a question, the attorney will want you to answer before you take a break. The reason is that they do not want a question pending while you step outside to speak with your attorney and formulate an answer with their assistance. Therefore, if you need to take a break, answer the last question and immediately ask for a break.

This is standard process for a deposition in Massachusetts. Obviously, the circumstances of a specific case may require something different (videotaped depositions, depositions concerning experts, etc.)