Don't fear the deposition

One of the best truth seeking tools in a civil case is called the deposition.  If you are about to be deposed or maybe you are conducting a deposition for the first time, I think Arnold Schwarzenegger  summed it up best in the following clip.

That’s right.  An attorney gets to ask questions of a deponent (the person giving the testimony) and they have to be answered (generally).

No consulting with your attorney before answering, no running to the bathroom, no responding “well whats that got to do with anything?”.  Your attorney can object to the form of the question or foundation, but generally can’t instruct you as to why they have objected.  This is what is known as a ‘speaking objection’.  While many attorneys do use speaking objections, it is not permitted by the rules.

The main time your attorney can object and instruct you not to answer is to protect privileged or confidential information.  For example, asking what a deponent and their attorney talked about would reveal protected information and the attorney should object and instruct not to answer.  Generally most attorneys avoid that line of questioning.

But what about when the deponent is asked for their social security number or any criminal convictions they have had in the past?  Well, as usual the answer whether those questions should be answered is: is it worth it to object and instruct not to answer.  Courts have protected confidential or private information even though it is not privileged information.  For example in Martin v. Ametek, Inc., a court denied a motion to compel in house counsel to answer questions about an her alleged romantic relationship with the corporations human services director.  This isn’t privileged information protected by law but a court said the deponent didn’t have to answer.

But an objection and instruction not to answer has to be decided by a judge which can add time and cost to the case and may irk the judge that the question wasn’t objected to and subsequently answered.

So if you have something you are worried about in your past or that may come up at a deposition, talk to your attorney.  Give them a heads up.  That way if it seems like the deposition might be headed that way, at least they can be prepared to object and instruct not to answer and have considered the consequences prior to the day of the deposition.