Transcript:

Hello, ladies and gentlemen. My name is Joseph Ott. I’m an attorney here at the Ott Law firm, and I wanted to create a video to help educate you about the nature of the deposition. One of the most important tools in the lawyers toolbox. So the deposition, what is it? Lawyers are allowed to subpoena witnesses. The subpoena means that you have the ability to compel someone to either give testimony or to produce documents.

If you’re a party to a case, meaning you’re either a plaintiff or a defendant, then you have the ability as a lawyer to take depositions in virtue of them being a party. But it’s important to understand that a deposition is somewhat of a compelled situation. So you may not actually want to do it, but you’re going to have to. In civil litigation, say, for instance, a car crash claim.

The deposition is used to help understand what the testimony would be at trial. So if you are a party to a case and the deposition is taken of you, the deposition transcript itself is not, for instance, admissible evidence. So it’s not like they can send the deposition back. And they also can’t necessarily read the transcript verbatim. They can only use it for the purposes of impeaching you when you’re testifying at trial.

So what that means is the transcript for the deposition is used to help the lawyer to figure out and constrain the universe of facts that you can testify to at trial and in a car crash claim. That in particular is going to mean getting down the details of your medical treatment and also the details of how the crash happened.

So that’s generally what a deposition is. Now, let’s talk about the proper way to give a deposition. Firstly, before the deposition, you’re going to come into my office and I’m going to prepare you and we’ll spend a lot of time going through certain exercises that I’ve developed to help witnesses be able to have good recall of the particular facts and circumstances of the case.

Now, when you go in to give your deposition on the actual day, there are certain technical parameters to it that are important for you to understand before you go in. So what’s going to happen is you’re going to get to the office and then there will be a court reporter there. The court reporter will ask you to raise your right hand and swear to tell the truth.

And of course, that’s what you want to do. Tell the truth. Now, the court reporter is going to have a tool through which they can type out and transcribe everything that’s being set. The record of what is typed out is what you’re trying to get with the deposition, and that’s what you can use to impeach the witnesses at trial and also to constrain them to what they testified to before.

So the fact that it’s being transcribed puts certain restrictions on how you talk. And what that means is you need to make sure that you answer each of the questions using full and complete sentences. That means no uh huh or nah uh and also no physical gesticulations, because that is not going to make it into the record. And although it does convey meaning relevant relative to what you’re testifying to, for instance, the jury will tune in to that 100%.

It doesn’t make it into the typed out record. And so you need to make sure, therefore, to answer the questions using full and complete sentences. Now, another parameter associated with this record is you want to make sure that you don’t interrupt the lawyer when they’re talking, because if you’re talking at the same time that they are, it can cause the record to jump back and forth in a way that precludes creating a record through which you can discern what was said and the particular order of events.

So these are two practical considerations that should be in the back of your mind when you’re testifying. Now, let’s talk a little bit about the tactics for giving an effective deposition presentation, and we’re going to make particular reference to a car crash case, because it’s the simplest to understand. But this also applies in the context of more complex disputes.

For instance, those arising over a breach of contract or employment disputes. So in the context of a car crash case, the defense lawyer is going to try to get you pinned down and a single version of what happened. And that means that they’re going to ask you in excruciating detail to describe all of the different parameters of what was going on on that day, Meaning they’re going to ask you before the crash, like where you were looking.

They’re going to ask you if the radio was on. They’re going to ask you, for instance, in the most limited period of time, directly before the crash, say, half a second, they’re going to ask you if you were turning the wheel or if where where in particular you were looking down the road when you notice the defendant, when you heard the horn, all these sorts of very minor details.

The purpose of them doing that is they want to tie you down to one particular version of it. And then at trial, if you testify and those details are modified even slightly, they can make it look like you have less credibility than you should. So we have a technique that we use to prepare the witnesses for this detailed level of questioning that they’re typically not going to be used to do.

And the way that we do that is we have, you visualize and we’ll go through an exercise in my office to help you create a very rich and this visceral visualization of the precise circumstances of the crash. This involves using the mind’s eye to transport yourself back to that day. We’ll look at the day of the crash, what day of the week

it was, what you were doing on that day, the weather, all of those things. And we’re going to have you attempt in your mind’s eye to place yourself back into your body before the crash and feel the physical sensations as they occur. For instance, if you are rushing somewhere or alternatively, if it’s common route that you take, how you would be feeling possibly what you’re hearing in terms of the radio and all of that is towards creating and reinvigorating your memory of the situation and in a way that is imperturbable so that the defense lawyer cannot do this technique of trying to turn you over on these sort of minute details.

Because when we recreate the memory in this visceral way, it’s not possible for them to trip you up like that because you know exactly what happened. So this is part of how we will prepare you tactically for the deposition. Now, another tactical parameter that’s important to consider is the level of detail with which you give your answers. So in terms of the actual facts as to how the crash occurred, we’re going to want you to put as much detail in there as you can while answering the question.

But as to the remaining portions of the deposition, two facts about medical treatment, facts about wage loss or employment or other sort of tertiary issues. We want you to only answer the question that you’ve been asked. So if the defense lawyer comes in and begins asking you, for instance, about your record, all of a particular physical therapy appointment that you did two years ago, and there is nothing otherwise significant about that date that would cue you in to know exactly what they’re talking about.

You want to say that to the lawyer and just say, I honestly have no idea. Like you’re asking me about some date. That was two years ago. I mean, on that day at a physical therapist. I guess if the record says that I went there, then I must have gone there. But I don’t have a clear and distinct recollection of actually that date.

That’s not unusual and that’s a totally fine answer to give. And that’s what I would want you to give, because if you don’t know the detail, then volunteering it is setting you up to fail. Oftentimes in medical records, there are going to be certain details taken on a particular day that are not necessarily beneficial to your case or even relevant to it, but that were included because they are part of the doctor’s diagnostic examination and have an independent medical significance, independent that is of your case.

So the point is, answer the question that you’re asked with the sole exception of describing the facts of the crash. Now, the facts of the crash become an event in the story that you’re telling and putting on to the jury trial. So we will work with you to develop this storyline and it will directly feed into how you testify at trial.

There are certain events like the crash and certain events after the crash for instance, a surgical recommendation, job loss, something of that nature that we will want to have super exquisite testimony about. Now, at the deposition, it may not be fully fleshed out yet, and that’s by design, because we don’t want them to have that before we go into trial.

But in general, this dichotomy between the events relevant to the story and the noise that comes from the tertiary details associated with it is important to recognize and as to events, we want clear and distinct, accurate full recall. As to the rest of the stuff, it’s not as important and it’s okay to say, I don’t know and to limit your answers.

So that’s our video providing you some background and practical tips about depositions. Now, obviously, before the deposition, if you’re my client, you’re going to come into my office. And if you’re giving a deposition elsewhere, it’s important that you consult a legal professional because they are very important to your case. Thank you.