Being Your Best Witness at Your Deposition

A deposition is the questioning of a witness under oath before a reporter, who records what is said. Unlike trial testimony, there is no judge present to rule on objections, and the scope of the questioning is broad enough to include hearsay.

A good deposing counsel will attempt to make the process seem more like a chat than an examination, because it is to that counsel’s advantage to get you to say as much as possible. What you say will be used against you in the trial and can generate material that can be characterized and exploited as problems or weaknesses in your case.

In an informal chat, your instinct will be to fill in the silences, to keep the conversation going, to infer and guess at what a statement means, and to say things that satisfy the other party to the conversation. In a deposition your silence is golden. You should not try to satisfy opposing counsel. When he or she is satisfied, that means you are losing your case. Instead of trying to fill “awkward” (but engineered) silences and “keeping up the conversation,” the experienced witness requires that each question be clear and concise, considers each such question before answering, answers each question clearly and concisely, and then stops. If you do only this much, you will earn you the respect of opposing counsel and advance your cause.

From the time we are children, we are trained to “get it all out in the open” when we are “on the hot seat,” and to rely on the good faith and intentions of adults to treat us fairly in exchange for our candor. Thus, your inclination will be to “free associate” aloud in the belief that if you are making every effort to be forthcoming and open, you will always get the benefit of the doubt. In a deposition, exactly the opposite is true. The deposing attorney’s objective is first to be fair to his or her client, not to you, and to make the strongest case possible for his or her client. If you follow your natural inclination, you will simply provide that attorney with a smorgasbord of opportunities to destroy your case.

Because the questioning is controlled by opposing counsel, the questions will be oriented towards a view of events that favors that counsel’s client. Through these questions, opposing counsel will be seeking material to bolster his or her client’s story and to lock you in to unfavorable testimony where possible. Undisciplined efforts to set out your case in your deposition, against the agenda set by deposing counsel, are usually disastrous. However, there are techniques, set forth below, to make sure that your story is not forgotten in this process.

Your deposition is also the opposing counsel’s opportunity to assess you and your ability to be convincing. If you treat the process and all present with respect, maintain an even and professional disposition and follow the principles set out below, you will send the message that you will be convincing to a judge and jury, and you will improve the prospects of settlement of your case on terms favorable to you.

PRELIMINARIES

Think of the deposition as an interview for something you want and dress accordingly. This means neatly, in primary colors and in business attire. It does not mean you should be uncomfortable. You can expect that you will spend hours in an intense process and you should be as comfortable as possible under the circumstances.

Avoid distracting gestures, fidgeting, and any other physical behaviors that interfere with what you will be saying. Keep your hands firmly on the table or in your lap, maintain good eye contact and good posture, and speak clearly using appropriate language. Treat everyone in the room with courtesy and dignity, especially opposing counsel. Maintain an even demeanor and do not lose your temper.

Remember that you may consult your attorney prior to the deposition and you may go over documents as well; there is nothing wrong with this. What you and your attorney say to each other is generally privileged and need not be revealed. However, conversations with third parties are not privileged and to the extent they are recalled you must disclose their substance if you are questioned about them. Likewise, to the extent you recall precisely what you reviewed, you must disclose this information if asked (unless it is a document prepared by or provided by your attorney, in which case it may be privileged).

WHEN THE QUESTIONING BEGINS

Do not be troubled by silence. SILENCE IS GOOD. Everyone expects a good witness to be silent once a question is asked so that he or she can consider it and formulate his or her answer. Do not be taken in by expectant looks or gestures of the sort that would inspire you to go on in a cocktail conversation. Take a breath before answering any question. Control the pace of the deposition. Whenever you feel tired, or thirsty, or not completely focused, or want to stretch your legs, take a break. When an important substantive question follows simple questions (e.g., “Your full name?” “What is your address?” “Did you see my client’s car as you approached the intersection?”), change your pace. Take a deep breath and use more time to consider and answer.

TELL THE TRUTH. You are under oath and anything you say that is not true risks destroying your credibility and integrity, and is also a violation of the law. Listen to the whole question. Wait until the attorney finishes the question before answering. When the question is finished, repeat it in your mind and make sure you understand exactly what is asked before you answer it. Only when you have the answer fully and clearly in your mind should you respond. Do not free associate aloud in formulating your answer.

Answer only the question asked. Then STOP. If a question can be answered “yes” or “no,” strive to answer it with one of those words. If a question asks “who,” and you know “who,” provide a name. If a question asks “when,” and you know “when,” provide a time. Do not volunteer information that has not been sought. You do not have universal knowledge or universal recall. Responding to a question with “I do not know” or “I do not recall” is perfectly acceptable.

Make certain you understand the question. You may ask the other attorney to repeat, or restate, or rephrase the question if you have any confusion about what is being asked. If the question is compound – that is if it contains sub-parts or includes assumptions that are not true – ask that the question be repeated or clarified or broken down. If you do not do this, your answer to one part of the question may be taken as an implicit acceptance of the truth of what may not be not true in the question or as an answer to another part of the question you did not intend to answer.

Do not assume or guess. State only what you know from firsthand knowledge. Likewise, stick to the facts and do not state opinions. Do not feel compelled to explain or elaborate. You have no obligation to teach. Any inclination you may feel to do this is probably one the questioner intends you to feel so you can talk enough to get into trouble. If a question seeks information on documents (e.g., “What symptoms did you experience when you saw the doctor?”) do not try to recall all the details of the documents. Instead, ask to see the documents relevant to the question to “refresh your recollection.” To the extent these are not available, be sure to qualify your answer using words such as “I’m not sure that, sitting here right now, without any documents to refer to, I could give you a full answer to what I experienced a year ago but, to the best of my recollection right now, subject to what the documentary record shows”…etc.)

If you realize you’ve made a mistake, correct it right away.

LISTEN TO YOUR LAWYER. When he instructs you not to answer a question, do not answer it. When he states an objection to a question, consider the nature of the objection and then consider the question in light of the objection. (E.g., “Objection; compound question.” A: “Could you rephrase the question please or break it down.”)

DOCUMENTS. Review the entire document before answering the question. Ask to see documents if that will assist answering the question. If you are not provided the documents, make clear that in their absence you cannot be confident that you are providing a complete and fully accurate answer. Do not agree to provide documents if asked during deposition. Let your attorney be the judge of what properly should be produced.

OTHER ATTORNEY. Remember: Despite the smiles, the other lawyer is not your friend and this is not a friendly chat. Be wary of expectant looks and gestures seeking further elaboration on a question you have answered; these do not show up on the record of the deposition and your natural response (to elaborate) only provides more material that can be used against you. Avoid conversational chit-chat, on and off the record.

Be aware of summary questions that characterize or rephrase your testimony. You may respond by taking issue with the summary or characterization if appropriate. (E.g., Q: “So, in sum, your business has more than doubled in size and you expect even more rapid expansion in the future?” A: “I didn’t say that.” Q: “You said you have doubled the number of employees and locations, didn’t you?” A: “First, ‘doubling’ is not ‘more than doubled.’ Second, our profits have actually dropped considerably during this time.”)

Use your own words when answering. Do not let the opposing attorney put words in your mouth. Provide a complete concise and responsive answer, even if the other attorney interrupts. Keep a poker face regardless of the question asked; do not get ruffled.

POINTS TO REMEMBER

Always tell the truth to the best of your recollection. Don’t worry about answering that you don’t remember some particular fact. Quite often a deposition or trial may take place many years after the sued-upon event: no-one is expected to have a photographic memory of past events. Don’t allow yourself to be intimidated into answering in an untruthful way that you don’t want to.

If you don’t understand a question, don’t hesitate to say that you don’t and ask that it be repeated or re-asked in a simpler way, so that you can understand it.

Don’t volunteer any information! Answer the question as courteously and briefly as possible. If a one-word answer (“yes” or “no”) will suffice, then use it. Answer only the question that’s asked; don’t volunteer information; after you’ve answered the question, stop; if no one is talking, keep your mouth shut.

Answer the question asked.  If you are asked to describe the color of the sky, do not describe the color of the grass, no matter how important you feel it is.

Don’t be a smart aleck! No cute answers. This is a serious part of the lawsuit, no matter how friendly the person on the other side taking your deposition may appear to be.  Remember, your testimony is being recorded and will be put in written form.  Sarcasm does not translate in a written record.

Don’t rush your answer. Sometimes the other lawyer will speed up the pace of the questioning, hoping to lead you to blurt out something that you might not otherwise wish to mention. Give your attorney the opportunity to object to the question. If the other lawyer starts to shout or try to intimidate you, just follow your own lawyer’s instructions: if your lawyer instructs you not to answer, then don’t! As stated above, if the other attorney isn’t happy, the issue can be brought into court, where a judge will look at the transcript and issue a ruling, as if the judge were present at the deposition.

And remember, anyone who testifies differently in court than they did in written Interrogatories or at an oral Deposition runs the risk of having their prior inconsistency being rubbed right in their nose as they sit there on the witness stand. The other attorney will point out to the court (judge, jury) that you’ve changed your story, and you may be made out to look like a liar. Worse than that, you also run the risk of being charged with the crime of perjury. This is rarely done, but it does happen.