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A: OMG, I don’t know!

Not too long ago, my wife and I were at dinner with our neighbors and friends. This was two days after our third wedding anniversary, and naturally one of the friends decided to ask me what we did to celebrate and what we had given each other. Everyone looked to me waiting for my answer, including my wife. I’m convinced this so called “friend” likes to get me in trouble.

My response: “Uh….um….uh…we…um…I got her a…um…she got me…uh….[expletive censored]. I don’t remember. (notice wife glaring out of corner of eye) [expletive censored].”

All of us forget things from time to time. Sometimes, we forget allegedly important things. I find in my practice that clients are usually not worried about forgetting things until the time they have been summoned for a deposition. If you have filed a lawsuit alleging personal injury, the defendant has a right to take your deposition pursuant to the North Carolina Rules of Civil Procedure.  The deposition is a legal proceeding, more informal than actual courtroom testimony, where the defendant’s attorney has an opportunity to ask you certain questions applicable to the case.   Your answers, as well as the questions asked, will be taken down by a court stenographer and will be transcribed. 

During the deposition, all of your answers will be given under oath, and they may be used at the time of trial.  Therefore, it is extremely important to be well prepared for your deposition testimony since the deposition is as important as the trial itself, and may be extremely important in terms of settling the case. 

Clients freak out when they have to give a deposition because they don’t remember some of the things related to the accident. They think they are going to fail their deposition. Say, for example, what day of the week it happened on two years ago when it happened. Or, they may forget what they talked about verbatim with the doctor on their third office visit on the morning of that visit two and one-half years ago. This is reasonable and to be expected.

A deposition is not a test. It is not the SAT, LSAT or bar exam. It’s a discovery tool designed to be more of a conversation between you and the other attorney so they can discover more information and understand your side of the case better. You don’t get a gold star for answering all the questions and getting them all right. If the attorney asks you a question and you do not know the answer because you do not remember, “I don’t know” and/or “I don’t remember” are perfectly acceptable deposition responses as long as they are truthful responses. Some deponents want to give into the urge to guess at the answer; and this should be avoided.

There are certain things in a deposition that you do want to remember, however. Virtually every lawyer will tell you to remember to give verbal answers, for example. No head nods, shakes, or the ambiguous “uh-uh” and “uh-huh.”  There are also some questions where we expect you to know the answer and remember. For example, “Please state your full name for the record.”

Experience has taught me, however, in the countless depositions I have taken and defended, that peoples’ nerves sometimes get the better of them and they rely on “I don’t know” and “I don’t remember” as a crutch. This should be avoided, and a deponent should take a second or two and make sure they understood the question and that it truly is something they do not have the personal knowledge to answer.

Experience has also taught me that on certain days, like today, humor can be the cure for nervousness in the case of a deponent or just general aggravation in the case of the lawyer. In case you are having one of those days, allow me to share what I have found to be other important things to remember during a deposition . These are based on SNAFU’s my clients have generated over the years:

  • Remember how old you are and what your date of birth is. You look really, really dumb when you say “I don’t know” and “I don’t remember” to these questions.


  • Remember that it is not your lawyer’s fault when you change your testimony in the middle of the deposition. No, he should not have told you to “stick to your story.” Telling the truth should be obvious at any point of the case. If you lied previously, shame on you. If you lied in your deposition, I have to report you.


  • Remember to stay awake. Falling asleep during your testimony will not relieve you of the responsibility of answering the question. We will wake you up to get the answer. Plus, the snoring is annoying to the court reporter.


  • Remember to listen to, and think about, the question. When you answer “No” to the question of “Were you injured in this accident?,” you no longer have a personal injury case.


  • Remember to show up. While I agree that it would be better for your particular case if you do not have to answer questions about it, a deposition is not optional. You must attend.


Disclaimer: The views of the author are his own. Nothing in this post should be construed to provide legal advice to any particular individual. The author has realized that he paints himself out to be a bad husband in his posts. This is an inaccurate portrait. His wife may disagree, but she does not write this blog so it doesn’t matter. If you are a divorce attorney and regularly read this blog, the author would remind you of the ethical limitations on solicitation of cases and the mandatory reporting requirements imposed on attorneys, like the author, for transgressions of the ethical rules. Do not contact his wife. The author would also remind you that you have hours to bill and better things to do than read this blog.

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