Introduction

This chapter offers suggestions to help you prepare for being deposed (having your deposition taken). Although preparation for anyone being deposed is similar, this chapter's suggestions differ somewhat depending on whether you are:

• a party represented by a lawyer
• a party representing yourself, or
• a nonparty witness.

Although you may benefit from reading the entire chapter, if you are pressed for time, concentrate on the section that applies to your situation.

Parties Represented by Attorneys

If you are a plaintiff or defendant who is represented by an attorney, you may use any or all of the preparation methods suggested in the sections below. However, because attorneys sometimes follow idiosyncratic practices when it comes to deposition preparation (and some may even disagree with one or more of the suggestions here), consult with your lawyer before beginning to prepare seriously. Then, together, you and your attorney can work out a joint strategy. (If you are a nonparty witness who will be represented by an attorney at your deposition, like a party, you too should discuss how to prepare for your deposition with the attorney.)

The following subsections address a few subjects that parties should be familiar with even if they are represented by an attorney. Just as educated consumers often get the best deals, educated clients often get the best level of service from their lawyers.

Do Not Discuss the Deposition With Your Opponent

Never discuss your deposition with the opposing party or the party's lawyer. Instead, convey every communication and request, even one as simple as changing the deposition's date or starting time, through your attorney. Especially if your opponent is also represented by a lawyer, contacting the other party personally can be risky. Even a courteous request may be misinterpreted as an attempt to intimidate the party or evade the rules. And if you end up talking about the case, you may unwittingly provide your adversary with additional evidence to use against you. (To encourage parties to settle disputes, evidence rules generally forbid parties from mentioning settlement negotiations or offers and counteroffers at trial. (See Federal Rule of Evidence 408.) However, to avoid any misunderstanding about whether a predeposition conversation you had was a settlement discussion, leave the communications to your attorney.)

Meeting Before the Deposition

If you are to testify completely and accurately at your deposition, you'll undoubtedly need to prepare in advance. As a general rule, therefore, expect your attorney to request to meet with you prior to the date of your deposition. Deposition preparation sessions are legitimate and routine: If you're asked at deposition whether you met with your attorney before the deposition to go over your testimony, you can answer "yes" forthrightly. (See "Responding to Common Questions" in Chapter 4 for more on how to answer this question.)

At the predeposition meeting, the attorney will probably explain what will happen at the deposition, review important documents that you may be asked about, and discuss general strategies as to how you should respond to deposition questions. Many attorneys like to conduct a short "mock" (practice) deposition so that you can practice answering the types of questions you're likely to be asked at the deposition. During the practice session, your attorney's questions will probably focus on the details of important events.

Your attorney may suggest holding the predeposition meeting only a day or two prior to the deposition. This gives the attorney maximum time to review the file and be up to speed on the issues and the kinds of questions you're likely to be asked. However, your peace of mind should also be a relevant factor. If you're feeling anxious about being deposed, you might ask to meet with your attorney well in advance of the deposition. At this earlier time, the attorney should be able to review the deposition process with you as well as address and hopefully assuage any concerns that are making you anxious.

Responding to Requests for Documents

The Notice of Deposition may ask you to bring various documents along to the deposition. If so, review the notice with your attorney. Your attorney may want to refuse the request (at least in part) on the ground that one or more of the sought-after documents is "privileged" (shielded from disclosure). (See Chapter 7.)

Or, the notice may be so broad or vague that you'll need your lawyer's help to know what to bring. For instance, after reading a notice that asks you to bring "all records and memoranda" pertaining to a particular transaction, you may be unsure as to whether an email message obliquely referring to the transaction should be included. If you neglect to bring a document that the deposing party asks -- and is entitled -- to see, you may have to return with the documents for additional deposition testimony. By checking with your attorney, you can avoid either unnecessarily prolonging your deposition or unwittingly revealing documents the opposing party shouldn't see.

Reviewing Documents

Regardless of whether a particular document is one that you have been asked to produce at the deposition, it is important that you not read or review any documents in preparation for your deposition until you consult with your attorney. That's because one of the first questions you're likely to be asked at deposition is the following:

Q: Prior to appearing for this deposition, did you review any documents in preparation for the deposition?

If you answer "yes," you will probably then immediately be asked to identify all the documents you looked at. Those documents would include electronically stored information such as email messages and computer files. Your adversary may then demand to see all these documents. Since deposition rules normally require you to turn over to the opposing party for examination any documents you use to "refresh your recollection" in preparation for a deposition, this demand is usually proper. In fact, in some states you can even be forced to turn over a document that would otherwise be privileged and thus shielded from disclosure! To avoid having to turn over a document that your adversary may not otherwise have known even existed, you should not review documents before talking to your lawyer.

Parties Representing Themselves

If you are representing yourself in a lawsuit, quite possibly the first thing you'll need to do after receiving a Notice of Deposition is to calm down. Check the time, date, and location of the deposition. Remember that depositions are a common feature of civil litigation; that you have been called for a deposition should be seen as neither unusual nor particularly scary.

However, because what you say at the deposition (and how you say it) can significantly influence whether your opponent decides to go all the way to a trial, as well as the terms of any settlement offer the other party might make, good preparation is essential. The next sections present some suggestions designed to help you present accurate and credible deposition testimony.

Gathering Requested Documents

Review the Notice of Deposition to determine whether you are required to bring specified documents with you to the deposition. Below are issues to consider when deciding how to respond to a document request.

Is the Document Request Proper Under the Discovery Rules?

FRCP 26(b)(2) provides that a document request is improper when its "burden or expense ... outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues ... and the importance of the proposed discovery in resolving the issues." Typical examples of document requests that may be improper under this rule include:

• a request that is too vague for you to figure out what you're supposed to bring (for example, "produce all records bearing on important accounts")
• a request that is so broad that you would have to fill a 16-wheeler with records in order to comply (for example, "produce all employee records for the past ten years"), or
• a request that seeks hard-to-find documents that you believe have no relevance to the dispute (for example, "produce the last telephone bill you received before installing the new phone system eight years ago").

In all of these situations, FRCP 26(b)(2) probably makes the requests improper. Your initial response should be to contact the deposing party and try to resolve the problem. For instance, if the problem is that the request is too vague, ask the deposing party to specify which documents you are to produce or to narrow the request to a particular period of time. If you and the deposing party agree on what documents you are to bring, it's best to put your understanding in writing in the form of a letter.

[Sample Letter Confirming Agreement on Document Request] omitted for online sample chapter.

If you cannot resolve the problem informally, you should bring to your deposition only those documents that you can identify as reasonably related to the case and called for by the document request. For example, if you think that the request to produce "all employee records for the past ten years" is too broad and burdensome, you might bring the records for the past two years if that is the period of time that seems reasonably related to the dispute.

When you're asked at the deposition which documents you've brought, you should respond by identifying what you've brought and explaining why you haven't brought every conceivable document. For example, if you were asked to bring "all records pertaining to important accounts," you might say something like,

"I brought the records for the Hatfield and McCoy accounts. Those are the only ones I brought, because they are the only ones that seem related to this case, and I didn't really know what you meant by 'important accounts' because we have over 500 accounts in the office."

If your adversary's lawyer wants additional records, you might try again to reach an agreement at the deposition. If you cannot reach an agreement, your adversary will have to go to court and seek an order requiring you to produce additional documents. At the court hearing, you can justify your response by pointing out the vague wording of the document request and why additional documents would have no bearing on the case.

Are Requested Documents in Your "Possession or Control"?

When complying with a request for documents, you need gather and bring with you to the deposition only those documents that are in your "possession or control." Your adversary cannot force you to obtain documents that are in the possession of someone who is outside your control. At the same time, it is not legally proper for you to give documents away to other people simply to avoid having to comply with a request in a Notice of Deposition.

Example 1
A Notice of Deposition asks you, the owner or manager of a business, to bring a certain written contract to your deposition. The contract is in the office of your assistant manager in a different city. You would have to bring the contract to the deposition. It may not be in your physical possession, but it is under your control because the assistant manager works for you and your company.

Example 2
Again, a Notice of Deposition asks you to bring a certain written contract to your deposition. After receiving the notice, you remove the contract from a file in your office and give it to a friend or relative. Because you voluntarily gave up possession of the contract after you were given notice to produce it at your deposition, the contract remains in your "possession or control" and you would have to produce it at the deposition. (Lawyers would say you have "constructive possession.")

If you don't produce it, the deposing party will surely ask for its whereabouts. You will either have to reveal that you gave it away after receiving the notice to produce it or lie about what happened under oath. Assuming that you tell the truth, you'll have to produce the document anyway. If you're discovered to have lied, you severely damage your credibility and expose yourself to criminal prosecution for perjury.

Example 3
Again, a Notice of Deposition asks you to bring a certain written contract to your deposition. However, the contract was one of a number of documents that you transferred to another company when you sold part of your business. You would not have to produce the contract at your deposition, as it is no longer in your possession or control.

Are Requested Documents Privileged?

You also need not and should not turn over to your adversary any documents that are privileged (shielded from disclosure). Examples of documents that may be privileged include the following:

• Written communications to or from your lawyer. For example, a letter or email message written by you to a lawyer seeking legal representation or an opinion about the merits of your case would be privileged.
• Written communications between you and your spouse. For example, an email message that you send to your spouse describing some aspect of the case would be privileged.

See Chapter 7 for a fuller explanation of privileges. Other documents that may be privileged include a letter from your doctor discussing your physical condition, a document that contains confidential business information known as a "trade secret" (such as your company's confidential list of prospective customers), or even a document that might implicate you in criminal activity. Whether documents can be withheld as privileged often depends on the information contained in a document and the legal and factual issues involved in the lawsuit.

Whenever possible, seek legal advice if you think that a possibly important document you do not want to reveal may be legitimately withheld as privileged. If you decide not to seek advice from a lawyer and are still uncertain as to whether the information in question is privileged, you can address the issue at the deposition itself. Tell your opponent's lawyer on the record (taken down by the court reporter after you've been sworn in) which documents you have not produced because you think they are privileged -- without revealing too much of their contents. You and the lawyer may then be able to work out an acceptable compromise.

Be careful not to reveal privileged information. If you voluntarily reveal privileged information, a court might find that you have "waived the privilege" (given up your right to keep the communications confidential). For example, if, in the course of describing a document you withheld because you think it is privileged, you go into such great detail that you reveal the contents of the document, you might have to hand over that document. Err on the side of less detail. It's better to say "I didn't produce correspondence from my lawyer" than "I didn't produce a letter in which my lawyer told me that he thinks I will make a bad witness and will have trouble proving that I have been injured."

Example
You are suing someone for personal injuries they caused you in an auto accident. You get a Notice of Deposition that requires you to produce "all documents that mention or refer to the injuries you claim you suffered as a result of the accident." (These documents would not be privileged, because when you make a legal claim for personal injuries, you waive [give up] the doctor-patient privilege for written and oral communications between you and your physician relating to those injuries.)

On your computer, you have a copy of a letter you sent to the doctor who is treating you for the injuries caused by the accident. In that letter, you briefly refer to the injuries caused by the accident, and then discuss in detail another personal medical problem completely unrelated to the injuries you sustained in the accident. You have decided not to produce the letter because it contains personal information about a medical condition that has nothing to do with the lawsuit, and you assert the doctor-patient privilege as a basis for withholding the letter. At your deposition, the following exchange takes place:

Q: (Adversary's lawyer): Have you brought with you today all the documents I requested in the Notice of Deposition?

A: (You): With one exception. I have a copy of all the documents that you asked for right here. But there is one document that I am not producing because I believe it is privileged.

Q: And what document is that?

A: It's a letter I sent to the doctor who's been treating me for injuries I suffered in the accident.

Q: Why do you think it is privileged?

A: Because it's a letter I sent to my doctor and it's mostly about a personal medical problem I have that has nothing to do with the auto accident.

Q: You say this letter is mostly about an unrelated personal medical problem. Does the letter say anything about the injuries you sustained in the accident?

A: Yes, it mentions them just very briefly.

Q: All right, let me suggest how we might proceed. Use my copy machine and make a copy of the portion of the letter that refers to the injuries you claim to have sustained in the accident. You don't have to copy the rest of the letter. Or if you prefer, you can read to me the portion of the letter that refers to your injuries. But before you do either of those, I want to tell you that I am reserving the right to go to court later in the case to ask the judge to order you to produce the entire letter if I think I need to see it. Can you copy the letter and cover up the portion referring to your medical problem that is unrelated to the accident?

A: Yes. I can do that. That sounds fair to me.

By voluntarily indicating to your opponent that you are withholding a document because you believe it is privileged, you demonstrate to the lawyer (and later to a judge, if necessary) that you are not trying to hide relevant documents. If you are up front about your reasons for withholding documents, you can probably work out solutions with the adversary's lawyer.

After gathering the documents you will produce, make photocopies and bring both the originals and the copies to your deposition. (If the documents are many hundreds of pages or more and you want to save the expense of making copies, it's acceptable to bring just the originals to the deposition. The opposing party's lawyer can then pay to make copies.) You will ordinarily be allowed to retain the originals, but you should bring them to the deposition in case the lawyer wishes to examine them.

Also bring with you any documents you are withholding based on a claim of privilege, in case after discussing the privilege issue with your adversary's lawyer you decide to reveal unprivileged portions.

Refreshing Your Memory About the Facts

Careful preparation is key to giving a successful deposition. Prepare to testify as seriously for your deposition as you would for trial. Thoroughly refresh your memory about the facts of the case so that you can testify accurately and completely. A deposition is not the time to hide the strengths of your case from your adversary. The subsections below explain the many ways you benefit from being well prepared to testify at your deposition.

Obtain a Better Settlement Before Trial

As emphasized throughout this book, cases generally settle before they get to actual trials. The terms of a settlement often depend on the parties' assessments of how a case would be decided if they went to a trial. And your opponent's evaluation of the strength of your case will often depend to a significant extent on its assessment of how persuasive a witness you would be in the courtroom.

If at your deposition you can recall and testify completely and convincingly about the facts that underlie your case, you will tend to convince your adversary that you will make a persuasive witness. By contrast, if you repeatedly respond to questions by saying "I don't recall" or "I don't remember" or, even worse, give conflicting accounts of key facts, the other party may well conclude that you are likely to be an unconvincing trial witness.

Consequently, how much you are offered to settle the case (if you are a plaintiff) or how much is demanded from you (if you are a defendant) may depend on how well you testify at your deposition.

Look Better Before the Judge or Jury If the Case Goes to Trial

At first blush, you may conclude that you are better off if you go into a deposition with as little recollection of events as possible. Your thinking may go along these lines:

"If I don't refresh my memory in preparation for the deposition, I will honestly be able to answer with 'I don't remember' in response to many deposition questions. That will prevent my adversary from finding out what I'm going to say at trial or getting me to give answers that might damage my case. So, if right before trial I refresh my memory about the facts that I couldn't remember at my deposition, I can really catch my adversary by surprise."

Unfortunately for you, this strategy almost always backfires. One danger is that your opponent may be able to use your "I don't remember" answers in a motion to dismiss your case before trial, on the ground that you do not have enough facts to prove a critical part of your case. A second danger is that your "I don't remember" responses at the deposition can severely damage your credibility at trial. Assume that at trial you are able to testify to a number of facts that you said you couldn't recall at your deposition. The following example illustrates how your adversary can use your "I don't remember" deposition responses to undermine your credibility at trial.

Q: (Opposing party's lawyer at trial): When you met with Mr. Jones to discuss your work on the Fletcher file, did you tell him that you had been working overtime to try to get all your work done?

A: (You): Yes, I did.

Q: You're sure of that?

A: Yes.

Q: Your Honor, I ask permission to read into the record a portion of the witness' deposition testimony. This is at page 35, lines 4 through 7.

Judge: Go ahead.

Q: (Lawyer reads from your deposition): "Q: When you met with Mr. Jones to discuss your work on the Fletcher file, did you tell him that you had been working overtime to try to get all your work done? A: I don't remember." That was the testimony that you gave at your deposition about a year ago, isn't that true?

A: Yes.

Q: Now, when you met with Mr. Jones to discuss your work on the Fletcher file, did you tell him that you had completed the yearly report on time?

A: Yes, I did.

Q: Your Honor, I once again ask permission to read into the record another portion of the witness's deposition testimony, this time at page 35, lines 17 through 20.

Judge: Go ahead.

Q: (Lawyer reads from your deposition): "Q: When you met with Mr. Jones to discuss your work on the Fletcher file, did you tell him that you had completed the yearly report on time? A: I don't remember." That was also testimony that you gave at your deposition about a year ago, correct?

A: Yes.

In most people's experiences, memory is the opposite of fine wine -- it usually grows worse, not better, over time. By claiming to be able to remember details at trial that you were unable to recall a year earlier, you give a judge or jury reason to suspect your answers.

Of course, no matter how thoroughly you review the facts of a case in preparation for your deposition, you will probably have to respond to some questions by saying, "I don't remember." Virtually every truthful witness is unable to answer some of the questions posed at a deposition. If you cannot remember the answer to a deposition question, your oath to tell the truth requires that you say just that. Honestly not recalling is a far cry from choosing to remain ignorant on purpose.

Methods of Refreshing Your Memory

Most people have their own idiosyncratic methods of recalling past events. (If you doubt this, consider what you do when you lose your keys.) And, of course, the precise sources you will consult to refresh your recollection will necessarily depend on the specific circumstances of your case. Nevertheless, the following general suggestions may be helpful.

Determine the Facts in Dispute

Most lawsuits grow out of parties' disputes about how past events unfolded. For example, in an auto accident case, factual disputes might include who had the green light and how seriously the plaintiff was hurt. In a landlord versus tenant case, the factual disputes might be whether the tenant paid the rent on time and whether the landlord adequately fixed a leaking roof promptly after the tenant complained. In a copyright case over ownership of a computer game, the factual dispute may concern whether the software company had access to the game developer's computer files. Were these cases to go to trial, it would be the job of the judge or jury to resolve the factual disputes by deciding what it thinks is most likely the truth. Similarly, in any settlement negotiations, your adversary and you will likely argue about whose version of the disputed facts is correct.

Consequently, you should begin to refresh your memory in anticipation of your deposition by identifying each of the important factual disputes in your case. For example, in a case involving a lawsuit by a restaurant patron who slipped and fell in a restaurant, a factual dispute might consist of the following:

• Plaintiff's version of events: Plaintiff slipped on cheese sauce that had been on the restaurant's floor for at least a half hour.
• Defendant's version: The cheese sauce was spilled by a customer just moments before the defendant slipped on it.

This dispute about timing can be crucial, because the restaurant may be liable for the customer's injuries only if the cheese sauce was on the floor long enough for the restaurant's employees to have reasonably been expected to clean it up (or put another way, leaving it on the floor for that long amounted to negligence). That's why the deposing party's questions are likely to focus on key factual disputes like this one.

For example, the defendant may ask the plaintiff questions such as:

Q: Did you see anyone spill the cheese sauce?

Q: How long had you been in the restaurant before you slipped?

Q: Did you hear any other customers mention that there was cheese sauce on the floor?

You may be wondering how a person without legal training should go about isolating the key factual disputes in a case. Disputes are normally evident from such sources as:

• The plaintiff's "Complaint" and the defendant's "Answer" (the pleadings that put the legal machinery in motion). While neither you nor your opponent have to set out your full stories in complaints and answers, they often contain enough information for you to identify the principal factual disputes.
• Settlement discussions, either before or after formal court proceedings began.
• Your opponent's use of other discovery methods. For example, if your opponent sends you a set of "interrogatories" (written questions; see Chapter 9) emphasizing particular parts of your story, you're on notice that those are the parts that your opponent will likely dispute.

Review Documents

Reviewing case-related documents is another way to refresh your recollection in anticipation of your deposition. Documents you'll typically want to look at include:

• letters that you have exchanged with your adversary
• business records relating to the transaction involved in a case
• police reports
• witness statements, and
• your answers to any written interrogatories.

There is no need to try to memorize documents. Simply use them to help you remember what happened. Any detail you recall and mention at your deposition might be the one that helps to resolve an important dispute in your favor.

Don't review privileged or unrequested harmful documents. Reviewing documents is an excellent way to help you recall past events. However, you should expect your opponent's lawyer to ask you to identify all documents you used to refresh your memory when preparing for the deposition. The lawyer will probably then ask to see -- and you'll have to hand over -- any such documents. As a result, you should not review the following two kinds of documents:

• Privileged documents. Even if a document is privileged, if you use it to prepare for your deposition you will have to hand it over. To maintain your claim that a document is privileged, do not use it to refresh your memory. (See Chapter 7 for more information on privileges.)
• Documents containing harmful information. You may have a document that contains information that hurts your case. For example, perhaps you wrote a letter to a friend discussing what you thought were weaknesses in your case. If your opponent's lawyer has not asked you to produce that document at the deposition, do not use it to refresh your memory. If you do, and if the lawyer asks to see the documents you used to refresh your memory, you may have to turn it over.

Talk to Other Witnesses

You can also refresh your memory by talking to any eyewitnesses who are willing to talk to you informally. You have the right to ask to talk to these people informally, though you can't compel them to speak to you. Remember, however, that your opponent's lawyer can ask you whom you've talked to about the case, and what you talked about. The lawyer may even choose to depose whomever you identify and find out what you said. Therefore, you should be careful not to say anything to a witness or discuss any facts or legal theories you don't want revealed to the other side.

Example
Your landlord is seeking to evict you for nonpayment of rent. Your defense is that, as authorized by your state's laws, you deducted from the rent the amount you paid to a roofer to repair a leaky roof after your landlord refused to do so. After receiving a Notice of Deposition from the landlord, you might contact the roofer to refresh your recollection about the extent of the roof problems and what repairs were done. But don't say anything to the roofer that would give the landlord more ammunition to use against you if the landlord were to depose the roofer, such as telling the roofer about the unauthorized mail-order business you've been conducting in your apartment in violation of your lease.

Never suggest that a witness conceal or withhold information. Suggesting that a witness conceal or withhold information can amount to the crime of witness tampering or obstructing justice. And if the judge or jury hearing your civil case finds out that you tried to conceal information, your credibility and that of the witness can be ruined. So if you do talk to witnesses, be careful never to say anything like, "I hope you won't tell the other side anything about what I told you the day after the accident. I just wasn't myself that day, so I hope you'll keep that off the record."

Visit the Scene of Important Events

According to an old saying, "seeing is believing." For many of us, however, seeing is also remembering. That's why you may be able to enhance your recollection of important events by revisiting the scene where events took place. For example, you might want to visit the scene where an auto accident took place to remind yourself of the layout of the intersection and exactly how the accident happened. If the scene has changed dramatically since the events took place, or if revisiting it is not feasible, consider reviewing any photographs of the scene taken before it was altered.

Make Notes

Most people find it hard to keep detailed information in their heads. Writing down your story can help you retain what you have remembered, recall the order of events better, and stimulate your memory even further. Here are a few steps you can take to maximize your recall of key events:

• As you begin preparation, organize your overall story into a chronological outline. If you are like most people, organizing a story according to when events took place will help you remember those events and recall additional details. Leave room in your outline for additional information. (A computer is ideal for this task, because you can easily insert new information into an existing outline.)
• Write down your version of important disputed events, as well as all the information you can think of that indicates that your version is correct.

When representing yourself, any notes you take in preparation for a deposition are ordinarily protected by the "work product" privilege (covered in Chapter 7). This means that you will not have to turn your notes over to the deposing party. If, however, you bring your notes with you and use them to refresh your memory while testifying during your deposition, you may then have to show the notes to the other side. So if you plan on using notes at your deposition, make sure they do not contain information damaging to your case. Your notes should not, for example, have a section entitled, "The most glaring weaknesses in my case."

Deciding Whether You Want to Volunteer Additional Information

While preparing for your deposition, you should also think about a key strategic decision: Should you reveal information at your deposition even if your opponent's lawyer does not specifically ask you about it? The conventional "lawyer wisdom" is that volunteering information is a no-no. As a result, during predeposition planning meetings, attorneys often instruct their clients, "Do not volunteer information that you are not asked about." In large part, this advice is sound and reflects attorneys' general world view: the less you say, the less danger of getting into trouble.

But it is also true that volunteering information that strengthens your case can often improve your settlement position. This makes sense when you realize that much of the information your adversary will have concerning your version of events is likely to come from your deposition. In short, if you want to strengthen your settlement position by impressing the other side with just how compelling your case is (and what a strong and convincing advocate you are), you may want to make sure that highly favorable evidence makes its way into the deposition transcript.

If you decide that you want information that favors your case to come out at deposition, list that information on a piece of paper and bring it with you to the deposition for easy reference. You can put the helpful information on the record during your deposition in one of the following two ways:

• Mention the helpful information in the course of answering a related question.

Example 1
You are a plaintiff representing yourself in an auto accident case. You contend that the defendant's careless lane change caused your two cars to collide on Delta Street, resulting in your suffering a painful injury. But the defendant claims that your speeding was the cause of the collision. You are absolutely sure that you weren't speeding, in part because you slowed down after your passenger told you, "Be really careful when you get to Delta Street -- the cops are ticketing people like crazy for speeding on that stretch of road." You want to make your adversary aware of what your passenger told you, because it suggests that you had a very good reason not to speed. At your deposition, you are asked, "What were you doing just prior to the accident?" In response, you might say, "I was paying careful attention to the road, because my passenger had just told me to be really careful when I got to Delta Street because the cops were ticketing people like crazy for speeding on that stretch of road."

• If you don't have a chance to mention the helpful information during the questioning, wait until your adversary's lawyer concludes questioning you. Then say something like, "I have some additional information that I'd like to put on the record." You have a right to do this, as long as the facts you present are relevant to the case. Then simply state the additional information that you think helps your case.

Example 2
In the traffic accident case above, assume that you didn't mention the passenger's statement in the course of answering questions. When the opposing lawyer says, "I have no more questions," indicate your desire to testify to additional information, and then state what your passenger told you and how it affected your driving.

Volunteering information has potential downsides. For one thing, it's possible that information you think is helpful to your case may turn out to be helpful to your opponent. For another, you lose the opportunity to surprise your opponent with the information at trial. However, because most cases settle rather than go to trial, the surprise aspect of trial is mostly a fiction. Volunteering evidence you are pretty sure will prove helpful can be an effective way of securing a favorable case outcome.

Nonparty Witnesses

Few nonparty witnesses are represented by attorneys at depositions. (If you are a nonparty witness represented by an attorney, follow the advice in "Parties Represented by Attorneys," above.) The simple reason is that most witnesses are understandably reluctant to pay for a lawyer when they have nothing to gain or lose from a lawsuit's outcome.

However, not all nonparty witnesses are created alike -- they typically vary in their willingness to prepare for a deposition. For instance, as a nonparty witness you may be:

• totally disinterested in a case's outcome (for example, you saw only a portion of an event, have no allegiance to either party, and want no more involvement than absolutely necessary)
• interested in helping one of the parties (for example, you believe that one party is "in the right," and want to prepare for a deposition in order to help that party by testifying completely and accurately), or
• fearful of being named as a party in a future civil or criminal case growing out of the incidents you will be asked about at the deposition.

This section looks briefly at how you might prepare for a deposition from each of these perspectives.

Responding to a Subpoena Duces Tecum

You may be served with a "Subpoena Duces Tecum re Deposition," which requires you to bring the documents specified in the subpoena to the deposition. Despite your nonparty witness status, the deposing party has a right to ask you to locate documents and bring them to the deposition. However, as discussed in "Gathering Requested Documents," above, the subpoena may be improper (for example, because it is too vague or too broad), may ask for documents not within your possession or control, or may seek privileged documents. Before producing any documents in response to a subpoena, refer to that section for information on how to proceed.

You have largely the same rights and alternatives as a party when it comes to withholding and revealing documents. However, a Subpoena Duces Tecum is a court order. Unreasonable failure to comply with it could result in your being held in contempt of court and having to pay the deposing party's expenses for going to court to obtain an order requiring you to comply with the subpoena. Before refusing to produce documents called for by a Subpoena Duces Tecum, therefore, you may want to seek legal advice.

Totally Disinterested Nonparty Witnesses

You may have no interest in a case's outcome. That is, perhaps neither you nor anyone close to you has anything to gain from a case's outcome, nor do you feel a psychological affinity for either of the parties. If so, you can keep predeposition involvement to an absolute minimum. All you have to do is gather whatever documents you've been asked to bring, and show up at the time and place indicated on the subpoena. You needn't refresh your memory or talk to either of the parties or to their attorneys.

Example
Mort and Bella Adella are in a court battle concerning the custody of their daughter. Mort's attorney subpoenas Pastor Present, the daughter's religious-school teacher, to testify at deposition to the daughter's behavior in Sunday school classes. If Pastor Present has no allegiance to either mother or father, the Pastor needn't look at school records, talk to either party or their attorneys, or do anything else to prepare for the deposition.

Interested Nonparty Witnesses

In contrast, you may approach a deposition with an economic or psychological interest in providing one of the parties with as much helpful evidence as you can (consistent with your obligation to testify truthfully) for a variety of reasons. For example:

• Your spouse may be a plaintiff in the case in which you're to be deposed. If so, you'll share in any financial gains your spouse receives through the lawsuit.
• One of the parties might be your friendly next-door neighbor.
• Though you know neither of the parties, what you do know about the case may lead you to believe that one of them is in the right. For example, you may have observed an arrest made by a police officer who has later been sued by the person arrested for using excessive force to make the arrest. Depending on who you think was in the right, you may be interested in seeing either the officer or the arrested person prevail.

If you are for any such reason an "interested" nonparty witness, you may want to thoroughly prepare to be deposed. "Methods of Refreshing Your Memory," above, describes the steps you might take to refresh your recollection about the facts of the case. For example, you can visit the scene of important events, talk to other witnesses, and review documents. You can also talk informally to the attorney for the party whose position you support and refuse to talk informally to the other party's lawyer.

Though the attorney for the party you support does not represent you, it is proper to meet with him or her and even participate in a mock (practice) deposition. The attorney may also be willing to offer helpful suggestions at no cost to you if you need help understanding or complying with an order to bring documents to the deposition or if you want to reschedule the deposition. However, your conversations with the attorney would not be privileged (shielded from disclosure) because the attorney does not represent you. This means that you can be required to answer questions about these discussions at your deposition.

Nonparty Witnesses Who Might Become Parties

When, as a nonparty witness, you think there is a possibility that, as a result of information revealed at your deposition, you might later become a party to a civil lawsuit or be charged with a crime, you may want to hire a lawyer before your deposition. (For further discussion of situations in which you might want to hire a lawyer, see Chapter 1.) You should then handle deposition preparation just as though you were a party. For example, communicate with the deposing party only through your attorney and review what you plan to say during a predeposition meeting with your attorney. If you decide not to involve an attorney, at least prepare for your deposition according to the suggestions in "Parties Representing Themselves," above.

Example
Dee Minimis is a supervisor on a construction project. Dee was on the job site at the time of an accident in which a bulldozer driver was killed. The driver's family has sued the construction comany, and the local prosecutor is investigating to ascertain if any criminal laws were broken. Dee has been subpoenaed to give a deposition.

Dee should consider hiring a lawyer, even if the lawyer for the construction company is willing to advise her. Given the seriousness of the prosecutor's investigation and the fact that Dee was in charge of the project, it's reasonable for Dee to fear that she might eventually be named as a defendant in the civil lawsuit and that criminal charges might even be filed against her. And it's also possible that the construction company Dee works for might try to shift blame for the driver's death to Dee and other employees. If so, the presence of the company's lawyer at Dee's deposition might not adequately protect Dee's interests: That lawyer is there to watch out for the company, not for Dee.