Before reading this section, please be sure you have read Part 1: The Basics of a Deposition. Reading Part 1 first will make this section much easier to understand.
What is a deposition?
Although you have probably heard of a deposition, you probably have never been through a deposition. Or, if you have been through a deposition, your prior experience may have left you with an insufficient understanding of the process and your rights at the deposition. Don’t worry. A deposition is actually quite simple if you understand the process.
A deposition is nothing more than a question-and-answer session where attorneys for the other side get to ask you questions under oath.
They will ask about you, your relationship with the injured person, what you know about how the injury occurred, or how you or others have been affected by the injuries.
For now, we’ll focus on your RIGHTS, and how to address each question. Take your time on this. It’s the most important part of the process.
While we are a law firm that specializes in assisted living and nursing home abuse lawsuits, these principles and strategies apply to depositions in all kinds of cases.
Your Rights As A Witness At A Deposition
For most people being deposed, this is their first time seeing a deposition. With any new experience, the thought of it can cause anxiety.
What you may not know, is that during the deposition, you have the power to enforce what refer to as your rights. You are not a helpless witness to be pushed around and controlled by the person asking you questions. You actually have much more power than you may think.
- You have the right to HEAR every question before I answer.
- You have the right to UNDERSTAND every question before I answer.
- You have the right to ONLY ANSWER THE QUESTION I’M BEING ASKED
- You have the right to USE MY OWN WORDS to answer every question.
- You have the right to THINK and TAKE MY TIME answering.
- You have the right to TAKE BREAKS
- You have the right to BE YOURSELF
- You have the right to be in a CALM, COLLECTED STATE OF MIND before answering any question.
- You have the right to NOT REMEMBER or NOT KNOW THE ANSWER to any question.
- You have the right to COMPLETE AND HONEST TESTIMONY.
1. You have the right to HEAR every question before You answer.
For any number of reasons, you may not completely hear a question at a deposition. Perhaps the fan in the room kicked on, the lawyer mumbled, the deposition is being conducted by Zoom and the audio wasn’t clear, you’re hard of hearing, or you simply weren’t paying attention. The reason doesn’t matter. The only thing that matters is that you didn’t fully hear the question.
If you are asked a question and you do not 100% understand the question, don’t answer it. Simply ask the lawyer, “can you repeat the question?” Sometimes this can seem embarrassing because you feel that you are under pressure. The truth is no one—not even the lawyer asking you questions—wants you to answer a question you didn’t fully hear. A deposition is about getting to the truth, and if you haven’t fully heard the question, you may be answering truthfully to what you think you heard, but it might not be truthful to the question that was actually asked.
There is a simple tip to make sure that you heard the question:
- Repeat the question back in your head. If you have any doubt at all about what you were asked, don’t answer it. Ask them to repeat it.
You have the right to hear the question. So, if you did not 100% hear every word of the question, ask them to repeat it.
2. You have the right to UNDERSTAND the question.
It’s the lawyer’s job to ask clear, understandable questions. It is not your job to figure out what the lawyer is asking.
So, understand that you have the right to understand every question you are asked. You are giving sworn testimony. This is not only a right, but also your obligation because you are testifying under oath. This right goes hand-in-hand with your right to hear every part of the question.
It may sound obvious that you should not answer a question unless you understand it, and it may seem easy to do. However, you would be surprised how often in our day-to-day life we do not listen to everything that is being asked. Here are some reasons why:
- Studies have shown that around 60% of communication is nonverbal. What this tells us is that in our everyday lives, the words are not the most important part of the conversation. In a deposition they are. The court reporter types down verbal responses, not body language.
- In everyday conversation, it is a little awkward to completely wait until the person you are having a conversation with is completely done speaking, repeat their statement in your head, and then answer it. Regular conversations are much more fluid than that. So, we typically begin to formulate our response when the person we’re talking to is about 80% done with their question or statement before we begin to formulate our response.
- In our ordinary lives, it doesn’t matter if we don’t completely understand every word of our question, because our body language and facial expressions make up for the rest and show that we are on the same page. In a deposition, all that you are left with are your words that are being typed down by the court reporter.
- It feels unusual—and somewhat uncomfortable—to ask over and over again, “can you repeat or rephrase the question?” In a deposition, however, you should.
Here are a few simple tips:
- Remember the 4 W’s. If you can remember the 4W’s you’ll be in great shape.
- Who: Who are they asking about?
In a case involving nursing home neglect and abuse, there may be many different people involved. Some of the more common people include the person who was injured, you or a loved one, nurses, aides, or other people at the nursing home, doctors or hospital staff, or any other number of people. Be sure that you understand who the lawyer is asking about before you answer the question.If you’re at all unsure, ask the lawyer to clarify.
- What: What are they asking about?
There may be several topics that are discussed during a deposition. These could include certain injuries, different kinds of neglect—for example whether staff responded to call lights or toileted the resident, or there could be medical terms of diagnoses that you are asked about. No matter the question, be sure you understand what is being asked about before you answer.
- Where: If there is a location, make sure that you know what location they are asking about.
In a nursing home abuse case (and many other kinds of cases), there are often several locations involved. These typically include where the resident was living before the nursing home (like home, an assisted living facility, or other nursing home), the nursing home itself, any hospitals the resident went to, and where the resident was after they were injured.
- When: Make sure that you understand the time period that is being asked about.
Depositions have 3 basic time frames: Before (they were at the nursing home), During (the time they were at the nursing home), and After (they left the nursing home). It can sometimes be confusing to know what time frame the lawyer is asking about. If there is any doubt at all about the time frame in question, simply ask “when are you talking about?” Or “what time period are you asking about?” Or “are you asking about when he was at the nursing home?” It doesn’t matter how you make sure that you understand the time frame, just make sure that you do.
Repeat the question back in your head, if you have any doubt at all about what you were asked, don’t answer it. Ask them to repeat it.
Listen to the question as if you are having a phone conversation. When you do that, you actually have to listen more intently because there are no nonverbal gestures.
There should be a pause—a brief moment of silence—between the end of your question. If there isn’t a moment of silence, it means that you started answering the question before they were finished asking the question. If that happened, there is no way you fully understood the question because you were talking before they finished.
Never interpret the question. If you feel that you have to interpret what the lawyer is asking you, then you didn’t understand the question.
3. You have the right to ONLY ANSWER THE QUESTION YOU’RE BEING ASKED.
Stay on topic. It’s easy to simply start talking and think out loud until you get to the answer. That is fine in everyday conversation. However, it is not a good idea during a deposition.
Why is it a good idea to listen carefully and only answer the question being asked? There are a few reasons:
- It will keep the deposition shorter. Lawyers are often trained to follow up on every answer. If you give long, meandering answers, you are likely to touch on numerous topics of facts. Lawyers may follow up on those answers, even if they are not relevant to the case. This can lead to a very long deposition as the lawyers ask more questions based on your long winded answer, and it can cause you to become tired even before the important topics are discussed.
- You may disclose a fact that is not helpful to the case.
- It probably means you weren’t listening to the question.
This does not mean that every answer has to be short. You may have heard that in a deposition you should only answer “yes.” “no,” or “I don’t know.” That is bad advice given by lazy lawyers. The truth is that some answers are long, and some answers are short. The only thing that matters is that you are answering the question.
Here are some examples of short vs. long answers:
- Question: Do you believe the nursing home neglected your parent? Answer: Yes. [This is a short answer because it is just asking for a yes or no response.]
- Question: In what ways do you believe the nursing home neglected your parent? Answer: They did not answer his call light. I would press the call light, and no one would come for hours. I would arrive at the nursing home and my Dad would be sitting in his feces. They would not provide my Dad with the assistance he needed with eating. They would drop his tray off and leave the room, and he was unable to feed himself . . . . and on and on. [This is a long answer because the question is essentially asking for examples or a description.]
Whether a question requires a short or long answer often times depends on whether the question is asking for a description.
4. You have the right to USE YOUR OWN WORDS to answer every question.
One of the biggest concerns that people have before a deposition is that the lawyer will attempt to put words in their mouth. While this is a legitimate concern, following the previous rules will help you avoid that. If you hear the question and understand the question, it is easy to avoid the lawyer putting words in your mouth.
Here are a few examples of how a lawyer might try to put words in your mouth and how to avoid it.
- Summary questions:
Sometimes lawyers will attempt to summarize your answers into a simple soundbite. These are when the lawyer attempts to recap long answers or several answers into a single statement. For example, a lawyer may ask “so what you’re saying is . . .?” Or “If I could summarize your answers . . .?”
- Leading questions:
These are questions where the lawyers states the answer and asks you to agree with it. For example, “you’d agree that . . .?” Or “isn’t it true that . . .?”
Be cautious about these types of questions. If you agree to what the lawyer is saying, that becomes your testimony. All you need to do is listen to the question and ask yourself, is that how I would phrase it? If it is, then fine. If not, then say so. You can answer with things like, “that’s not what I just said.” Or, “I don’t agree with that.” Or, that’s only partially true.” Or, “you missed a large part of my answer.” Or, “I would not phrase it like that.”
5. You have the right to THINK and TAKE YOUR TIME answering.
Usual conversations are a fluid back and forth with very few long pauses to think about what we are going to say next. As you know by now, that is very different than a deposition.
In a deposition, there is a court reporter who types down the question and also the answer. At the end of the deposition, there is a little booklet of the deposition. The only thing that matters is what is typed on those pages. What is never typed is “witness is taking a long pause to think about the answer.” Whether you feel awkward or not, get over it. The court reporter and lawyers have much more respect for witnesses who take their time and thoughtfully answer questions than they do witnesses who appear good at conversation but who don’t think about the questions.
6. You have the right to TAKE BREAKS
During a deposition, you have the right to take breaks at any time, for any reason, and as often as you like. You are not a hostage. You may need to get up, stretch, clear your head because you are becoming emotional, have a snack or any other reason.
7. You have the right to BE YOURSELF
You are not an actor playing the role of a witness. You are a real person who saw, heard, or experienced certain things. In a deposition, you are that same person. Don’t try to be someone you are not.
8. You have the right to be in a CALM, COLLECTED STATE OF MIND before answering any question.
The best witnesses are those who can remain cool and collected in the deposition. Also, people who appear outwardly angry—such as physically or verbally aggressive or shouting—do not have as much credibility as people who remain cool and collected.
I’ll give you a real life example. Have you ever been out in public and seen two people screaming at each other? If you have, I doubt you looked at them and thought “those are two very intelligent people. I’m sure what they are saying is completely accurate and trustworthy.” Of course not. You may gawk at the scene because it is outlandish, but that is about it. On the other hand, have you ever seen a situation where one of the people is screaming, yelling, and acting in a threatening way and the other person seems cool, collected, and is acting like a normal person? Even without having any idea what they are saying, you probably have an immediate tendency to think the rational seeming person is more believable, more credible. This is human nature. With that in mind, always try to be cool, calm, and collected.
What if the lawyer gets aggressive with you? That’s fine. Remain cool, calm, and collected. If the lawyer gets faster and louder or pounds their fist on the table, that means they’re frustrated. They are most likely frustrated because you are doing a good job. Keep doing what you’re doing. If they get angry, you get calmer.
9. You have the right to NOT REMEMBER or NOT KNOW THE ANSWER to any question.
You do not have to know the answer to every question. There are times where you simply may not know the answer or may have forgotten a fact or two. That’s okay. We are not programmed robots. Memory is a weird thing. Our memories are typically tied to events that have strong emotions. So, we don’t remember the vast majority of our experiences.
I’ll give you an example, I can remember exactly where I was at 9:03 am on September 11, 2001. That’s because I was staring at a television and saw the plane hit the second twin tower in New York City in the worst terrorist attack in American history. The image and time is burned in my mind. It was tied to a strong emotion. But I can’t tell you where I was or what I was doing at 9 am on September 12 (my birthday). And that’s normal. Why would I remember what I was doing that day more than 2 decades later?
There are certain facts, names, and time that you will remember and some you won’t. You may remember the specific details of some conversations and not others. That’s fine.
10. You have the right to COMPLETE AND HONEST TESTIMONY.
The deposition will likely cover several topics: Topic A, B, C, and so on. Human nature being what it is, you may remember something later in the deposition that was discussed earlier in the deposition. That’s okay. Your job is to speak up and say, “you know what, earlier you were asking me about x and I remember Y.”
You may also remember that one of your earlier answers was incomplete or incorrect. That is also okay. Just speak up and say, “earlier you were asking me about X, and I forget to say Y”, or “earlier when you asked me X, I said Y, but I meant to say Z.”
The only thing that matters is that by the end of the deposition, you have given your most truthful, precise answers.
Questions About a Potential Lawsuit Involving a Nursing Home or Assisted Living Facility?
Michael Hill is a nationally recognized attorney who handles exclusively cases against long term care facilities. Michael and his firm, Michael Hill Trial Law, are headquartered in Cleveland, Ohio but handle cases across the country.
Disclaimer: This information is provided for informational purposes only. Nothing in this article should be construed as providing legal advice or the creation of an attorney client relationship. Laws are updated frequently and change from state to state. If you desire legal advice, you can contact Michael Hill Trial Law at www.protectseniors.com, send an email to info@protectseniors.com, call (800) 659-2712 to begin an investigation, or contact another attorney.
