Depositions can be stressful. There are a lot of questions, and many people find the entire process complicated. They worry about saying the wrong thing and what happens if they don’t know the answer to a question—or worse, don’t want to answer it.
Under U.S. law, individuals have the right to remain silent, which extends to depositions. However, exercising this right during a deposition may adversely affect your case.
This article offers guidance on navigating deposition questioning. While the process can be complex, professional legal assistance is available. Our experienced attorneys are prepared to guide you through this complex legal procedure when you decide to proceed.
Definition of Deposition
A deposition is a formal legal procedure where a witness is questioned under oath outside of a courtroom. Though video depositions are also admissible, they are usually given as oral testimony, after which a court reporter writes down the answers.
Depositions are part of a lawsuit’s discovery process, during which legal teams build their cases. Be it a criminal or civil lawsuit, both sides participate in these sessions, and the information gathered may be referenced during legal proceedings.
Importance of Depositions
Depositions play an essential role throughout the legal process:
- Gathering Evidence: Lawyers use depositions to help gather evidence as part of the case discovery. It helps them set the scene for what happened and uncover additional proof.
- Preparing for Trial: Depositions help all parties know what the other person will say at trial, so there are no ambushes. Lawyers can prepare their strategy accordingly.
- Discredit Witnesses: Attorneys may ask similar questions during legal proceedings. If you answer them differently, it could be used to discredit you.
- Provide Sworn Testimony: Sometimes, witnesses cannot be present at trial, and their deposition can be used in place.
A strong deposition can help settle a case out of court, so put your best foot forward during your testimony.
Your Right to Remain Silent
Generally speaking, you are supposed to answer all questions during a deposition. However, there are some instances where it’s okay to refuse to answer.
Fifth Amendment Protection
Under the Fifth Amendment, you have the right to remain silent to protect yourself against self-incrimination [1]. That means you can refuse to answer a question if it will implicate you in a crime.
Additionally, you can refuse to answer if the attorney asks leading questions about privileged information, personal details, or irrelevant information.
No one can force you to answer, but an attorney may try to ask them in different ways to trick you. If you answer, you won’t be able to strike it off the record unless you get agreement from all parties.
Asserting Your Rights
To not answer a question, you have to invoke the Fifth Amendment for it to apply. You can’t simply remain silent. If you do, you may be held in contempt for failing to answer.
You can assert your rights by saying something like:
- “I’m invoking my constitutional right to stay silent.”
- “I have a right to remain silent under law.”
- “I invoke the fifth amendment.”
If you assert your constitutional right to remain silent, you cannot be compelled to answer a question during your deposition.
Consulting With an Attorney
Your lawyer can help you prepare for your deposition. They won’t tell you how to answer a question, but they can:
- Review the case information with you to help you remember pertinent details.
- Help you understand what further questions may be asked and why you’ll be asked them.
- Provide feedback on your answers, body language, and other behaviors that could impact the deposition.
Conversations with your legal counsel are protected under attorney-client privilege, so they cannot be entered into evidence. Consulting with your lawyer before a deposition will help ensure you don’t accidentally say something that could be used against you.
Risks of Refusing to Answer Questions
While you have the right to remain silent, that doesn’t mean you should. There are some risks to refusing to answer.
Adverse Inferences
Because the Fifth Amendment protects people from incriminating themselves, many people will make assumptions if a witness refuses to answer a question. Be prepared for the defense attorney to make negative inferences that you will have to overcome during the proceedings.
Sanctions
You cannot refuse to answer all questions during a deposition. If you do, you could face sanctions. These consequences could include:
- Fines: As a result, you may have to pay fines to the court, reimburse the other party’s cost, etc.
- Contempt of court: You could be held in contempt of court and face jail time or additional fines.
- Default judgment: If you’re not cooperating with the case, the judge may automatically find the case in the other party’s favor.
While you cannot be compelled to answer when asserting your Fifth Amendment right, you must still comply with the court proceedings.
Impact on Your Case
Your refusal to answer a deposition question can harm your case. You may have to explain why you refused to answer the opposing counsel. If the judge does not like your answer, they can compel you to answer.
If you don’t, you can face serious consequences, including contempt of court, fines, and even the dismissal of the case.
When to Answer Questions
As you answer questions from the opposing party, here are some scenarios to remember.
Objective Facts
A deposition question that’s factually based is typically safe to answer. This situation can include the accident’s date, time, and location. You can confirm you were at the scene even if you do not want to offer privileged information.
Personal Opinions
You want to stick to the facts when it comes to your deposition. Don’t express personal opinions or speculate about events. This information is irrelevant and can harm your case. The other attorney may turn your own words against you, so it’s best only to tell the objective truth.
Consulting With an Attorney
Do not answer any questions without first consulting your attorney. Their counsel is invaluable throughout the deposition process. They can help you navigate potentially controversial or harmful questions that could damage your case.
Your lawyer will also explain how certain answers might benefit the opposing side and guide you toward more favorable responses.
Secure Expert Legal Representation!
If you’re scheduled for a deposition, consult a lawyer immediately. Rosenfeld Injury Lawyers can help you understand your legal options and ensure you feel prepared every step of the way.
Call (888) 424-5757 or fill out our contact form to schedule a free consultation with our Chicago personal injury law firm.
References: [1] Congress.gov