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How To Prepare For A Deposition



A deposition is an event where a witness, you, is asked questions under oath just like you were in a courtroom in front of a judge and jury.The court reporter will be there and take down every word you say as well as every word anyone in the room says.You will first be sworn in using the same oath used at trial for live witnesses.Then, the attorney that requested your deposition, one of the other side’s attorneys, will ask you questions.When it is over, the court reporter will print up a booklet that has every question and all of your answers.Each line of the deposition will be noted by its page number and each line is marked.You will have a chance to read and sign your deposition to make any corrections of spellings or misstatements.


What kind of questions will be asked?


Primarily, the questions will be about two things:


1. Who you are; and

2. What you know.


Who You Are


These questions will be about your background. The other attorneys will want to know something about most of the following items.Since attorneys differ on how and what they ask, some of the items may or may not be explored:


  1. Place and date of birth
  2. Levels of education and diplomas and degrees received.
  3. Employment history including salaries, job duties, and reasons for separation.
  4. Criminal arrest and conviction record.None is fine.
  5. Bankruptcy history.
  6. History of lawsuits.
  7. Marital history.
  8. Names & ages of children.
  9. Hobbies and interests.


They have a right to ask you quite a bit.The rule is as follows for how far and what they can ask about:


The question must be reasonably calculated to lead to the discovery of admissible evidence.


So it is not whether your answer at that moment would be admissible, but whether it is reasonably related to the facts in the case.This applies more to “What you know” rather than “Who you are.”



What You Know


These questions will be to find out the facts of your case.In a Real Estate Fraud or Misrepresentation case, they are going to ask mostly about the following:


  1. Why you bought the house.
  2. How you found the house.
  3. Who helped you find the house.
  4. Conversations between you and the sellers and realtors.
  5. What it is that you think was misrepresented.
  6. What documentation you have that the conditions of the house were misrepresented.
  7. What problems you found in the house.
  8. What contractors worked on the house.
  9. What costs and expenses you have had.
  10. What appraisals you have had.
  11. What repairs have been done.
  12. What you think the defendant(s) did wrong.
  13. What conversations you have had with the Defendant.
  14. What misrepresentations were made to you by the Defendant.
  15. What you think the Defendant should have told you.
  16. What you think the Defendant did not tell you.
  17. Who was with you during any conversations with the Defendant.
  18. Who else you blame for this problem.
  19. How you divide the responsibility for your problem.
  20. Do you consider yourself responsible for some of this problem.
  21. How many houses you have purchased before.
  22. How many homes you have sold before.


Then there will be certain things the attorneys may ask you about:


  1. Who you did not sue and why not.
  2. Your pleadings – this is the lawsuit on file.You should read it and understand it before your deposition.You should ask questions if you need to.
  3. Your answers to discovery.You should read them and understand your answers before your deposition and ask questions if necessary.
  4. How your attorney is being paid.You should reread your Fee Agreement.



Things You Should Know


Some lawyers are crafty and clever in asking their questions but the vast majority are merely trying to simply find out what it is you are going to say about your case.






A deposition is not meant to be the whole story. It is only the information that the other attorneys choose to ask you.If they forget something or never uncover a truly vital piece of information, then so be it.That is their strategic error.A deposition is only their questions to you. Your attorney will not ask you questions and won’t correct or supplement what comes out from their questions.




At trial, you get to go first if you are the Plaintiffs – the ones bringing the lawsuit. That means that we will tell your story in a detailed sensible and chronological manner.A deposition is a hodge podge of misdirected topics and may not have any complete or logical collection of information.




You should remember that the other attorney is not your friend.He or she may be friendly to you, but he or she would just as soon gut your case and leave it in the street then do anything to find the truth and justice in this case.You can be friendly or polite to the opposing counsel but you should not trust them during the deposition or when there are breaks.




Loose lips sink ships.You may think that when the court reporter is not typing during a break your comments are “off the record”.You would be wrong.As soon as the deposition restarts, the attorney will make you repeat what you just said. It is best to be shyly polite and not offer any information about yourself, your family, the case or anything.I recommend not even responding to simple questions about your hometown or other seemingly innocuous questions.




Lawyers will be watching everything you do.They will listen to your cell phone calls and read what you pull out in front of them.They will seize on any advantage you give them so don’t give them anything.




You should remember that a deposition is not about making the other attorney understand your case.It is about you answering the questions asked.If the attorney does not seem to exhibit understanding, don’t worry about it. That is his problem.It is his job to solicit the information from you.You owe nothing more than complete and accurate answers.




In normal human conversation, we want the person we are talking to comprehend what we are telling them.Here, don’t worry that the attorney has not been to the house and has no idea how the problem looks or feels.Just answer his questions fully. Human nature is to work harder andcompensate for someone who doesn’t fully understand you. Don’t do that here.  Lawyers are not always human.




If you are asked questions that require a specific date or time and you don’t really know it, don’t guess. For instance, if the attorney asks you if the first time you saw the house was two months before the closing and you know that is close to right, don’t answer “Yes”.You should answer “ I don’t know for sure but it was about two months before the closing.” If you can’t remember if you looked at the house twice or three times before closing, say: “I believe I looked at the house two or three times.”




Or if the answer is in documents you have, you can refer to the documents.If you are asked what date you closed and you don’t know for sure, answer: “I don’t recall exactly but it should be in the HUD1 Settlement Statement.”





You don’t want to say to much but you need to say enough.






Q:What did you think when you discovered there were termites in the mantle?


A: I thought it was bad.


Better answer:I couldn’t believe I had bought a house with termites when the sellers said they didn’t have any and the termite inspector said we didn’t have any.I felt like I had been cheated.




Q:What did you think when you discovered there were termites in the mantle?


A: I couldn’t believe I had bought a house with termites when the sellers said they didn’t have any and the termite inspector said we didn’t have any.I felt like I had been cheated.And I knew that when we had the inspection done, I told my husband he should have gone to the inspection and he said I was crazy and just

worried too much and that is when I told him he was shut down and couldn’t face

facts.So later when we found the termites, I felt like it was partly his fault for being lazy.





The lawyer spent three years and tens of thousands of dollars to learn how to probe and investigate.Let her do her job.If she asks a question but doesn’t follow up, it is not up to you to help her or make sure she has all of the information.Just answer what is asked.


Think of it like the card game “Go Fish”. If I don’t ever ask you for your “2s” and you have four of them, are you going to tell me you have them? Of course not.


Relax and tell the truth and you will have nothing to worry about. 


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