Ask The Lawyer By: Daniel A. Gwinn, Esq.

CALLED TO TESTIFY AT A DEPOSITION? HERE ARE SOME SIMPLE RULES

QUESTION:  A former co-worker sued our company for discrimination. Recently, I received a subpoena to testify in the mail. I have to go to a lawyer’s office in three weeks. I have no idea what this means, or what I’m supposed to do. Are there any guidelines to help me handle this?

ANSWER: The document you received, a subpoena to testify as a witness at a deposition, sounds far more alarming that it actually may be.A deposition is a way of gathering information and preserving it in a civil court case. A subpoena simply asks you to attend a deposition — the taking of testimony — because you may have information that is relevant in a lawsuit. A deposition is a way to discover and preserve testimony for trial.

Most depositions — like the one you are scheduled to attend — will take place at a lawyer’s office (although depositions are sometimes held at other locations, depending on the needs of the lawyers involved, their clients, and the person being deposed). The people present at a deposition are usually the parties (the people bringing a lawsuit and the people defending the lawsuit), their attorneys, and a Court Reporter who transcribes the testimony which will aid the attorneys in developing the case as it moves towards trial.

There is no judge, no jury, and no courtroom full of spectators.

If you received the subpoena in your capacity as a keeper of records for a business, or as an employee of the business, make sure you inform your superiors/supervisors about the subpoena.

You may wish to consult with an attorney before the deposition, especially if you feel your testimony might expose you to civil liability or even criminal prosecution.

The subpoena will generally state the matters you will be asked to testify about. You are not expected to ask other people to help you fill in any gaps in your recollection of past events; you will be asked to testify based on your own recollection. Just as at a trial, you will be asked to take an oath and swear or affirm to tell the truth. During the deposition you will be asked questions about the event, incident or accident at issue. Before getting down to the nitty-gritty, attorneys will usually ask for some general background information about you, such as your name, your education, your current job, your salary or wages, your work history, any special training you may have received, and sometimes — if relevant — your address, your age, your physical condition, and who is in your family.

The attorneys will most likely ask questions to discover what you remember about the incident or events, what you did, what you saw, who you spoke to, what you said and what they said. Attorneys may sometimes make objections to the form of the questions posed to you; you do not need to worry about these objections, but should wait until the attorney has finished making the objection before you proceed. Once the attorney for one side has questioned you (the direct examination), the attorney for the other party may conduct a cross-examination, to clear up or emphasize any testimony you gave on direct examination. You may even be questioned further, if the cross-examination produces testimony that also needs follow-up or clarification.

The attorneys may ask you to give testimony about numerous exhibits, these could be letters, reports, personnel files, emails, photos, videos, or even objects, describing how the exhibit was created, what it means or what it depicts.

Your job at the deposition is to answer the questions truthfully. You will need to listen carefully to the question, and answer what is asked. If you don’t understand the question, or don’t know the answer, say so. While people generally enjoy talking about themselves, a deposition is not the time to share personal anecdotes. Keep responses short and to the point. If an attorney did not specifically ask for information, it is usually best not to volunteer it.

Now, on to a very basic issues: What should you wear? While a deposition is not held in front of a judge in a courtroom, you should make an effort to be presentable — think business casual, at the least: Hair neatly groomed and clean, nice pants and a collared shirt for men; nice pants or skirt and an attractive top, or a dress for women. If you are a party to a lawsuit, your attorney might advise you to dress as if you were going to a very important job interview.

Depositions may be short—just an hour or so — or may last as long as several weeks in unusually complex cases, but most depositions last a day. Federal court rules limit the length of a deposition to 7 hours, unless otherwise ordered by the court.

Even where you are being called as a non-party witness, a deposition can be stressful. Make sure you get enough rest the night before a deposition. Eat a good breakfast. Drink water as needed. Ask for a break if you want one. While testifying at a deposition may provoke some anxiety, being prepared can make you more comfortable in what is, to most people, an unfamiliar setting.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law

(248) 247-3300
(248) 247-3310 facsimile 
daniel@gwinnlegal.com
www.gwinnlegal.com

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