My attorney for my car accident case notified me that I have an examination before trial in a month. What can I expect?
The term examination before trial is a unique name to New York State practice. Deposition is the most common term used in the Federal courts and every other state. A deposition is an opportunity for the attorney to ask the opposing party questions prior to a trial. It is a discovery device that parties use in order to gauge the strength or weakness of their case. The transcript of the testimony can be used to impeach a witness or read into evidence before a jury or for other purposes. CPLR 3117. There are some basic rules that a witness should be aware of before testifying.
1. Tell the truth. Before you begin testifying, you will take an oath to tell the truth. It is important that you stick to facts and state the truth.
2. You must answer all questions verbally. You may not gesture or a point in order to respond to a question. The court reporter will only take down the words of the question and the words you said in response to the question.
3. You must listen to the entire question before responding. First, a court reporter cannot listen to two people talking at the same time. Second, you may misinterpret where a question is going, and answer a question that is unresponsive to the actual question asked.
Listen to questions asked
4. Answer the question that is asked. If you are asked a question which requires a yes or no response, then respond with either yes or no. If you were asked a question that requires you to describe an object or the speed or of a vehicle, then respond with only that information. Many questions will require a simple answer. Please only give that answer and do not explain, elaborate, or give background information that was not asked.
5. You must understand a question before you answer it. If you do not understand the question you are being asked, then you need to state that. Most deposition questions are not carefully written out. At best, an attorney is going from a list of topics rather than specific questions. So if the attorney asks a clumsily phrased question, or uses a word or words you just do not understand, please say so. The attorney will rephrase the question so that you do understand it.
Do Not Guess
6. If you do not remember a specific detail, you must testify that you do not remember. Many times in casual conversations people fill in details. It does not mean that they are liars. But everybody wants a story to be cohesive and understandable by their audience. So sometimes people fill in details without really meaning to mislead or lie. An examination before trial is not a place to fill in details. Your best bet is to stick to what you saw or heard. If you really do not remember a specific detail, you should state “I don’t remember.”
Sometimes witnesses feel that they sound silly if they answer with the response “I don’t remember.” A lawyer cannot tell you how to feel, but a lawyer can advise you on the best way to present yourself as a witness. Fight the urge that you are back in grammar school answering questions on a test. Do not guess answers to questions. You are in a deposition. You must act appropriately.
Also, witnesses may sometimes feel that they must explain why they do not remember a specific detail. You are not obligated to explain yourself. You are merely obligated to respond to questions. Plus, you should never volunteer why you do not remember a specific detail. The attorney may ask you follow up questions.
7. If you do not know the answer to a question, you must say “I do not know.” You are not obligated to explain why you do not know a specific fact. Respond to the question you are asked. If the attorney so chooses, he may ask follow up questions to determine what you do know. But do not anticipate. Simply answer the question that is asked.
Depositions usually not done face to face
8. Since the days of COVID, most depositions are now done via zoom. That means witnesses, attorneys, and court reporters are all in different locations. There could be technical issues which prevent witnesses, attorneys and court reporters from hearing. Thus, it is even more important to make sure that you listen to the entire question before answering. If you believe that you did not hear the question for any reason, you must say so. The reporter can repeat any question that you did not hear.
9. From time to time, an attorney may object to the form of a question. If the witness hears their attorney object to a question, the witness should stop speaking immediately. You should wait until your attorney says it is ok to speak before responding again.
10. You may take a break. If you need water, a bathroom break, or you just feel overwhelmed and you need some time to compose yourself, you are allowed to do so. However, you must wait until you have answered the last question before you can take a break. You cannot leave while a question is pending.
There are additional issues that may come up with each particular case. However your attorney will explain the issues that you may have to address during the course of your examination before trial.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.