What You Need to Know Before Your Deposition

Suppose you and your business have just filed a civil lawsuit against another individual or business for breach of contract—or for tortious interference or any other valid reason—and the attorney for the other party subpoenas you in for a deposition.

Under California law, opposing attorneys have the right to depose (ask questions of) other parties or witnesses (known as respondents) to the legal action being undertaken. They can, however, depose each person only once to prevent depositions from being used as a form of harassment.

Though depositions generally take place outside of the courtroom and before trial has begun, they are still a legal proceeding and you are under oath to speak the truth. A court reporter will generally transcribe the minutes of the conversation, which the attorney can then use in further proceedings, inside or outside the courtroom.

If you are on either side of a business lawsuit in or around the Greater San Francisco Bay Area, you are going to need strong and aggressive legal advocacy and representation. The Law Offices of David H. Schwartz, INC can help you prepare for your deposition as well as deal with every aspect of any civil action you’re facing.

With more than 45 years of experience in business litigation, Attorney David H. Schwartz will be your staunch ally whether you are suing another business or being sued yourself. His office proudly serves clients not only in the San Francisco area, but also in San Jose, Santa Clara, San Mateo, Oakland, and Alameda County.

The Purpose of a Deposition

A deposition is a formal question-and-answer session that is recorded to provide a transcript of your testimony for further use by the opposing attorney. If the lawsuit is not resolved through negotiations and goes to trial, the attorney will then have your transcript at their disposal should you change your testimony in court.

Though depositions have typically been done in conference rooms or attorneys’ offices, the 2022 California Rules of Court allows for depositions to be taken by telephone, videoconference, or “other electronic means.”

A deposition, which typically might last one to two hours, generally begins with questions about your background and then delves into the details of the case at hand. The more detail-oriented the questioning becomes, the more nervous the respondent might feel due to unfamiliarity with the situation. 

Some common rules should be observed, and your attorney should help you prepare before you’re deposed. Your attorney should also be present with you during the deposition.

How to Conduct Yourself During a Deposition

The first rule is a simple one: Since you’re under oath, you must tell the truth. If you slant things or fabricate circumstances or answers, that can only come back to haunt you. Here are some other basic guidelines to observe when responding in a deposition:

Never guess. It’s okay to say, “I don’t know” in response to a question if you genuinely are only guessing at what might have happened or what might previously have been said pertaining to the question at hand.

Don’t make absolute statements. Avoid using the words “always” or “never” in an answer. The opposing attorney may find a situation to contradict your statement. “I always pay on time” could become, “What about your payment to Company A, which came in two months late?”

Avoid profanity. Using profane words or expressions can give the impression that you’re stressed and hoping to avoid a full answer.

Don’t volunteer information. Stick to answering the questions asked of you. If you start volunteering additional information, you may open the door to further questioning.

Don’t take matters lightly. Take the deposition seriously. Even if you think telling a joke might make you feel more comfortable, restrain yourself.

Do not argue. If you become angry, defensive, or argumentative, the attorney might probe for further details and try to get you to say something that can be used against you. 

Do not provide privileged information. Discussions with your attorney are considered privileged information that cannot be questioned by the opposing attorney. So, too, are your company’s trade secrets and intellectual property.

How Legal Counsel Can Help

You don’t want to go into a deposition unprepared or without the presence of your own counsel, who can object if questioning starts to skirt the rules of discovery.

If you’re facing or considering launching business litigation in the Greater San Francisco Bay Area, contact The Law Offices of David H. Schwartz, INC immediately. Attorney Schwartz will counsel and guide you through every step of the legal process, including preparing you for a deposition and representing you during the proceeding.


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