WHAT IS A DEPOSITION?
What is a deposition? It is when the other side verbally asks you questions, usually done by their attorney.
A court reporter is present at your Deposition and types the questions and answers, creating a transcript.
In Florida, depositions are controlled by Fla.R.Civ.P. 1.310.
Are depositions under oath?
Yes. The court reporter will ask you to raise your right hand and swear you in.
Who attends my Deposition?
Besides you, the Deposition will have your attorney and the attorneys for the other side. Each party (or the attorney representing them) can ask questions. But, if one party brings three attorneys, only one of the attorneys can ask you questions. Sometimes a party will attend with their attorney, but only their attorney can ask the questions. No one is allowed to be disruptive.
Are Depositions video-recorded?
They can be. It is up to the parties to choose to record Depositions. It is allowed explicitly in the Rules.
Where and when will my Deposition be?
If you are a Plaintiff, the other side may depose you in the county where the lawsuit is pending. If you are a Defendant seeking relief from the Plaintiff, the Plaintiff’s attorney may depose you in the county where the lawsuit is pending. Typically, if you are a witness, you will answer questions in the county where you work or reside.
When a Deposition occurs is a little more negotiable. Typically it is during regular business hours. It also depends on who you are. The attorneys typically coordinate a party’s Deposition. If you are an independent witness, the attorneys may or may not coordinate the Deposition with you. If you are out of town, or cannot attend at the time and place chosen by the attorneys, call the attorney who set the Deposition to reschedule. Most of the time, it is not a problem to reschedule the Deposition. There has to be “reasonable notice” for the Deposition. If a party subpoenas you for the next day without coordinating the Deposition with you, a Court will likely say that is not reasonable. Ten days or two weeks’ notice will probably be reasonable.
What topics are off-limits at a Deposition?
The Rule protects you from questions that are designed to “annoy, embarrass, or oppress the deponent.” Some common questioning topics that are off-limits are the attorney-client privilege, work-product privilege, or when you plead the Fifth Amendment. The person asking you questions may ask a judge for a ruling on whether these objections are valid but, if you make those objections correctly, the Judge will not force you to answer the questions.
A Court cannot force you to violate your Fifth Amendment Right. Pisciotti v. Stephens, 940 So. 2d 1217 (Fla. 4th DCA 2006).https://scholar.google.
Invoking the Fifth Amendment does come at a cost. A Jury may draw an adverse inference against you if you plead the Fifth. An adverse inference is that the jury can infer that your answer would be unfavorable under McCreery v. Fernandez, 882 So. 2d 498 (Fla. 4th DCA 2004). https://scholar.google.
One example is if you file a lawsuit against a drunk driver for personal injuries after they hit you with their car. When your attorney asks the driver in their Deposition if they were driving drunk, they will likely plead the Fifth. The jury can infer or determine that the answer would have been yes; they were driving drunk because the driver pled the Fifth.
The next area is attorney-client or work-product privileges. You do not have to answer questions that would violate attorney-client or work product privileges under Fla. R.Civ.P. 1.310 (c). See also Am. Home Assurance Co. v. Vreeland, 973 So. 2d 668 (Fla. 2d DCA 2008) https://scholar.google.
Furthermore, the Rule protects you from questions that are designed to “annoy, embarrass, or oppress the deponent.” Whether a Court forces you to answer is situational. For example, if you are an independent witness who only saw a car crash, they should not ask you how much money you earn. But if you are a party and claiming that you lost income as a result of the crash, your earnings are fair game.
There are some more rules to protect you. If you do not understand a question, ask the attorney to ask the question differently. You can also take a break if you need to use the bathroom, stretch your legs, or are tired.
Finally, you are not required to guess. Sometimes, the truth is that you do not remember or you do not know. Sometimes you are required to know the answers (for instance, as a corporate representative).
How long do Depositions take?
There are no hard and fast limits to this in state court. Federal Court has a limit of 7 hours of testimony (not including breaks). It will take as long as it takes for you to testify on what you know about the lawsuit’s issues. Going back to a car crash, it may take 15 minutes to an hour. Party’s depositions are usually much longer than an independent witness’s testimony. A party’s Deposition may take 3-7 hours or more depending on the complexity of the case.
Are Depositions confidential?
A Deposition or part of a Deposition may be confidential. It depends on the situation and the Deposition topics. The list of areas that may make a Deposition confidential is too long to list here. Still, common ones are your finances, health information, and trade secrets. Your attorney will discuss with you what might be confidential.
Are Depositions part of discovery?
Depositions are a vital part of discovery. Discovery is a broad term that encompasses a lot of different ways your opponent will learn about your case and how you learn about your opponent’s argument. There is more to the story than what documents can show. The hows, whys, and additional facts come to light during Depositions.
The verbal questions may include questions about evidence such as video, pictures, or documents. Those will be marked as Exhibits so that the attorneys know what material their questions address. The Court cannot force you to draw or mark up documents because you only have to answer oral questions. For instance, if you want to draw something to help explain your testimony like drawing an “X” on a picture, you can choose to do that. But, if you do not want to draw or put an “X,” the Court cannot force you to draw under Udkoff v. Hiett by & Through Hiett, 676 So. 2d 522 (Fla. 2d DCA 1996). https://scholar.google.
How are Depositions different in this COVID crisis?
Due to social distancing, there have been changes to Depositions. Instead of all of the parties and attorneys in one room, most appear by video-conference. It might be with Zoom, Skype, or Web-Ex. The court reporter will swear you in over the video-conference.
Are Depositions scary?
You will be nervous while testifying during a Deposition. Most of the fear is being unfamiliar with the process and being afraid to make a mistake. Have your lawyer explain the Deposition process to you, so you are familiar. That should take away the fear of the unknown. Next, telling the truth is the best way to fight the fear that you will make a mistake. Then, there are no mistakes.
Do not worry about mistakes. There are two chances to correct yourself. The first is that your attorney can ask you questions to clarify statements or put things you said in context. Also, you are allowed to ready a copy of the transcript for errors. You can correct yourself by writing the answers on a sheet of paper called an Errata sheet. The other attorney may call you back to answer questions on why you made the changes, but it is better to tell the whole truth. The case allowing a Deposition on the changes is Feltner v. Internationale Nederlanden Bank, N.V., 622 So. 2d 123 (Fla. 4th DCA 1993). https://scholar.google.
What if the other attorney yells, screams, or tries to intimidate you?
Most of the time, attorneys are professional, and this is not an issue. But if the questioning attorney is misbehaving, your attorney may end the Deposition and file a motion with the Court to stop that bad behavior.
Can you be called back to give another deposition?
Florida requires “good cause.” There are a limited number of times where you will be called back for Deposition. First, is that you are unavailable for Trial. Then your testimony may be taken for use at trial, and you will likely be video-recorded. Next is if you fill out the Errata sheet mentioned above, and they can ask you about why you made changes. Finally, if you are a party and there are changes in your life. One example is that if you are suing for personal injuries and you get surgery after your Deposition. You may be called back for a Deposition if your life has changed. But it is limited to the surgery, treatment, and any changes in your life since your last Deposition. The other attorney is not usually permitted to ask you questions that they should have asked during your first Deposition.
If a new party joins the lawsuit, they can take your Deposition because they were not there to ask you questions the first time.
What if the attorney forgot to ask specific questions the first time?
It is not “good cause,” where an attorney admits that there were “areas that [they] should have covered and [they] didn’t. J.S. v. State, 45 So. 3d 910, 911 (Fla. 4th DCA 2010). https://scholar.google.
Parties use Depositions in different ways. If a witness is not available for Trial, then the transcript may be read in or played for the Jury. It may be shown to the Jury by the opposite party during Trial. Finally, the other side will use your Deposition to impeach you or show that you are changing your story. That damages your credibility if you give different answers to the questions.
It is best to treat your Deposition as if you are testifying during Trial because of the potential implications. If you need legal assistance, contact the experienced attorneys at Dyson Law PLLC at 561-903-4542. dysonlaw.com