March 8, 2016

As part of lawsuit, parties and witnesses are often asked to give depositions. A deposition consists of attorneys asking questions to a person, called a deponent, under oath.

The deponent is asked to “swear or affirm” that she is telling the truth. In the old days, they used to end that with, “so help you God.” That, like most mentions of the Almighty in courts, has fallen out of fashion. The reason for the word “affirm,” as opposed to “swear,” are Biblical verses like James 5:12 and Matthew 5:34 which say, “do not swear.”

At any rate, the attorney asking questions has great latitude to during this process, known as “discovery,” to seek a broad range of information. In injury cases, this includes prior health history, educational background, family history, work record and injuries claimed from the accident. Also, there are lines of questions regarding loss of wages and any permanent restrictions related to the accident.

It is important to be accurate during a deposition. Even so, there are almost certainly some things that the deponent will forget or misremember. However, if the person being deposed has been truthful in all other respects, a flaw or two in memory are usually are not fatal to the credibility of the deponent. In fact, it is usually perceived as normal for there to be an occasional memory lapse. If someone is overly rehearsed is sometimes even a sign of dishonesty.

When lawyers ask “never” they mean “never.” Those without legal training (those that are still normal) will often use “never” to mean “usually not” or “rarely.” This causes a lot of problems. It is important to be clear in depositions, and in talking to any investigative authorities. Inconsistencies are the undoing of many a deponent.

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