Memphis Injury Lawyer Blog

In Tennessee civil cases, the winning or losing happens in or after the depositions. A deposition is sworn out of court testimony recorded by a stenographer with lawyers for both sides in attendance. In other words, a witness is examined by one of the lawyers and a court reporter takes everything down. The reporter later types up the proceedings which is referred to as a transcript. Most depositions in Memphis are also videotaped these days and any appropriate documents can be attached as exhibits to the transcript. Sounds pretty straight forward, right? Wrong.

This is a battleground in a lawyer's conference room. The lawyer who is taking the deposition of the witness is attempting to "discover" information from the witness that is relevant to the case or information that might lead to the "discovery" of relevant admissible evidence. This lawyer is also trying to freeze the witnesses testimony to what is said in the deposition so that the witness cannot change his or her story later. This boils down to a huge fishing expedition where the witness is the fish and the lawyer is looking to fry him up for dinner. Lawyers are attempting to learn all that they can about the case from the witness, but that is not the whole agenda.

An experienced lawyer is already preparing his cross examination in the deposition. That is, the lawyer is finding out the strengths and witnesses of each witness so that when the lawyer prepares the case for trial, she knows how to phrase a question; what questions should and (sometimes more importantly) should not be asked; and in what order the questions should be asked. One of my mentors told me that the quality of the deposition testimony decides who will put on the best case at trial and will frequently determine who wins the trial and who loses. These mini-trials are governed by a set of rules which include both the Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence. What the Rules don't tell you is the "do's and don'ts" for witnesses giving a deposition.

Let's examine the following deposition carefully. I think that you will find that the deponent (the person who is giving the deposition testimony) does a very good job of following the rules for giving a good deposition, with one exception.

If you thought that the witness did well except for the portions where she loses her temper with the lawyer respecting her brother, I agree. The following are my 21 Commandments for Depositions. Most of these "commandments" apply to every deposition and I submit that if you follow these suggestions, you will give your best deposition. They are:

1. Be truthful at all times.
2. Remember the purpose of taking your deposition is to get information from you.
3. Be polite and respectful, but firm with the examining attorney.
4. Listen carefully to each question and answer only the question asked.
5. Don't try to answer a question you do not understand.
6. Do not speculate or guess at an answer.
7. Do not volunteer any information. (If you are not asked about it, don’t volunteer it.)
8. Do not attempt to tell your side of the story at the deposition. (Don’t attempt to argue the case)
9. Be on guard against the deposing attorney re-characterizing or rephrasing your testimony.
10. Be careful of "tell me all you know" questions.
11. Be cautious of requests for you to admit a fact.
12. Be careful of questions based upon incorrect assumptions.
13. Don't reveal information that is private between you and your attorney.
14. Do not argue with the examining attorney, lose your temper or become upset.
15. If you are asked a question about a document, be sure that you know what it says before answering.

16. If you are a party, you may be charged with knowledge of the contents of pleadings.

17. Advise your attorney of any documents you reviewed to prepare for your deposition.
18. If you discover that you have inadvertently given an incorrect or misleading answer, tell your attorney. He may want you to correct it on the record.
19. If you wish to take a break because you're tired or for any other reason, tell your attorney.
20. It is okay for you to talk with your attorney during breaks. It is not permissible for your attorney to tell you how to answer a particular question.
21. Pay attention to objections by your attorney.

In closing this article, perhaps the following bad example will help us realize what a deposition disaster is like. If you can hang around until the final sentence, you will see a vulgar piece of testimony that in Shelby County could well land you in jail for contempt of Court. Yes, a court can hold you in contempt for your conduct in a deposition.