Your Deposition

General:

A deposition is one of several devices used in the discovery phase of litigation. It consists of one or more attorneys questioning a witness, under oath, with a stenographer who records the testimony. A judge is not present.

Purposes:

Depositions have several basic purposes.

• First, they allow one side to find out what a witness or a party knows about the case.
• Second, it fixes a witness’s story so that he/she cannot amend his/her story to fit the proofs or change his/her story at trial.
• Third, under certain limited circumstances, it preserves the testimony for witnesses who may not be available to testify at trial.
• Fourth, a deposition is frequently used at trial to impugn or impeach a witness who testifies differently than their deposition testimony at trial.
• Finally, if you are a party, your deposition may be used as actual trial testimony at the time of trial.

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Basics of Success:

Your success as a deposition witness depends almost entirely upon your truthfulness and your understanding of the deposition technique.

There is no mystery to being a good deposition witness. It does not depend on verbal skills or ability. It is depends upon truthfulness and the conscientious application of the techniques listed below.

Your function as a deposition witness is, in most instances, purely responsive to the examiner’s questions. You are not going to convince the examiner of the merit of your case.

It has often been said that you cannot win your case at a deposition; but, you can lose it.

Your attorney will be at the deposition. In most cases, his objections are limited to the form of the examiner’s questions or to questions that seek to discover privileged information, such as attorney-client communications. Do not think that limited participation of your counsel during the deposition is a negative. Often, the less he says at the deposition, the better.

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Instructions:

A. Truth:

Always tell the truth, no matter what. This is the first Rule and the most important. You should assume that the person who is examining you knows the answer before you give it and has a document to support it. You may find that you do not want to give a completely candid answer to a particular question because you think the answer may damage your case. In that situation, consider the following:

1. Such answers are rarely as damaging as they first appear. We can and will put them in their proper context at the proper time.
2. We expect the opposition to score some points. We do not have to win every battle/every question to win the war.
3. Any damage caused by a completely candid answer will be much less than the damage caused by a false response.

B. Prior Discussion With Your Attorney:

You may be asked whether you talked to anyone about your testimony, or if you spoke to your attorney. If you did, admit to it. If you are asked whether you were told what to say at the deposition, the truthful answer is that we instructed you to tell the truth. Anything beyond that is a privileged attorney/client communication.

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C. Analyzing the Question:

1. Listen to the Question. Make sure you understand the question. Do not be afraid to say that you do not understand the question. Do not hesitate to have the examiner repeat the question.
2. Do not answer a question you do not understand. It is up to the examiner to ask intelligible, unambiguous questions. If he cannot do it, do not help him. Do not say “do you mean X or do you mean Y?” Simply state that you don’t understand the question and force the examiner to rephrase the question or to withdraw it.
3. Watch out for compound questions. A compound question is two questions in one; “Did you see the accident and was the light red?” The answer to that question could be yes and no. Do not answer compound questions.  Ask the examiner to split it up into parts.
4. Pay particular attention to the introductory clauses preceding the question. Leading questions are often preceded by statements which are either half-truths or facts that you know to be true. Tell the examiner you cannot answer because you disagree with or have no knowledge about its underlying assumption.
5. Do not let the examiner put words in your mouth. If you do not agree with a characterization of your prior testimony, say so. Simply state that you do not agree. “I did not say that” is a perfect answer.
6. Ask yourself whether the examiner is setting you up. If you sense that the examiner is trying to pin you down to facts that are not entirely true, think about whether you need to qualify your answer. Also, reject the examiner’s efforts to overstate your testimony “Didn’t you say that you never did that?” for example.
7. Pause and think before answering every question. It helps you to analyze the question and then answer.  Repeat the question in your mind. The more you do this, the more it becomes second nature and the better it permits you, rather than the examiner, to dictate the tempo of the deposition. It is especially important when you get tired or feel under pressure. Do not be embarrassed by your time in answering. The written transcript will not reflect how long it took you to answer. If the examining attorney comments on the record that you are taking to much time, simply say that you want to be sure your answer is accurate.

D. Objections By Your Attorney:

Your attorney may object to a question asked of you. If he does, stop your answer and listen to the objection very carefully. You may learn something about how the question could be handled from the objection. The more usual grounds for objections include the following:

1. The question is not sufficiently specific;
2. The question is not relevant to the case;
3. The question calls for a legal conclusion;
4. The question calls for privileged information;
5. The question calls for information, which, even if not privileged, is confidential and not relevant to the case;
6. The question assumes facts that have not been established or the proper foundation has not been laid;
7. The question calls for more than one answer.

After the objection is discussed by the attorneys, always ask the stenographer to reread the original question.

Your attorney may object simply for the record and then tell you to go ahead to answer the question; or he may object and instruct you not to answer. Follow his instruction and do not be intimidated by the examining attorney.

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E. Responses to the Questions:

1. Do not begin speaking until you have mentally formulated an honest answer. Thinking the answer through to the very end allows you to be correct.
2. Answer the question put to you – nothing more, nothing less. Answer only the question asked – not what you suspect the examiner is trying to get at.
3. Answer the question accurately but as businesslike and briefly as possible. Do not try to explain why you did or said something. Do not try to appear friendly or helpful. This is not a social occasion, it is a legal proceeding.
4. Do not volunteer information. You are not there to educate the examiner. You will feel a strong urge to add to your answer with additional facts or to explain something that you think helps your cause. Resist that impulse.
5. Do not explain the thought process by which you reached the answer. Your answer depends on the facts not why or how you recall the fact.
6. Furnish only those facts that are within your personal knowledge – that you personally have seen and heard.  If you don’t know the answer, say so. You may be asked to give impressions or beliefs, don’t provide either.
7. If the examiner appears confused about your business or any other facts, do not try to educate him. You are not his assistant!
8. If you are finished with the answer and the answer is complete, do not expand upon it. Do not add to your answer because the examiner looks at you expectantly. If the examiner asks you if that is all you recollect, say yes. When there is a silence – and this is very important – do not fill in additional information. Answer the question; then be quiet. Sit there for 40 minutes of silence if it takes them that long to ask the next question.
9. Speak distinctly and slowly so that the reporter can transcribe your testimony accurately.
10. Do not try to memorize your testimony. If you need to refer to a document, say so and do not offer to produce it or ask your attorney for it. It is their responsibility to have the documents they need.
11. Be only as specific as your memory allows. Do not be put in a position of going beyond your true recollection.  If you are asked when something occurred and you know it occurred on January 15, do not state “about January, 15.” If you cannot recall, simply say “I don’t remember.”
12. Do not guess. Deposition witnesses often fall into the trap of feeling that they have to know the answer to every question. That is disastrous. Guessing will create more problems than you can imagine.
13. New insights. If you are hit with a flash of insight or recollection that you have not discussed previously with your attorney, hold this to yourself until you have had an opportunity to go over it with him.

F. Characterization:

1. Never characterize your own testimony. “In all candor,” “honestly”, “I’m doing the best I can,” “to be perfectly honest.” All your testimony is truthful.
2. Avoid absolutes and superlatives. “I never” or “I always” have a way of coming back to haunt you.
3. Conversations. In testifying about conversations, make it clear whether you are paraphrasing or quoting directly.
4. People. Do not offer opinions or impressions about people.

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G. Demeanor:

1. Never express anger or argue with the examiner. If a deposition is unpleasant, that is what your attorney gets paid to handle. Do not argue with the examiner or let him make you angry. Do not try to make him angry. Do not get into arguments with the attorneys. If your attorney appears to be angry, it may or may not be legitimate; do not allow yourself to be angry.
2. Friend. The examiner is not your friend. Do not be lulled into that. His/her job is solely to get testimony that is damaging to you and helpful to his/her case.
3. There is no such thing as “off the record.” Don’t discuss the case with anyone or the reporter “off the record,” during breaks or at lunch.
4. Avoid any attempts at levity. You will be hauled over the coals for not taking your oath seriously if you begin to make jokes.
5. Avoid even the mildest obscenity and avoid any reference which could be derogatory to any race, sex, ethnic origin, or religion.
6. Interruptions. If you are interrupted, let the examiner finish his interruption but  but courteously state that you were interrupted and that you had not finished your prior answer.

H. Documents:

1. Under no circumstances – absolutely no circumstances – are you to bring anything into the examination room. Your attorney will bring any papers that have been subpoenaed or are relevant. There is nothing worse than a witness pulling a piece of paper out of his pocket and stating “I made myself some notes.”
2. If you are asked about a document, read it before testifying. Numerous papers may be marked as exhibits at a deposition. Read every one of them before answering any questions about them.
3. Ask to see the documents. If the examiner is using a document which he does not show to you, do not answer any question about it unless you see the document.
4. Do not tip off the examiner to the existence of documents. Do not say that you cannot answer a question without looking at a document, simply answer the question by stating you do not recall.
5. Identifying documents. If you are asked to identify a document, examine it to see whether it is identical in every respect with a document you have or are satisfied that it is authentic. If it merely looks like a document you have seen, you can’t recall having seen it or it doesn’t look authentic, so state.
6. Do not agree to supply any information or documents requested by the examiner. Such requests should be made to and answered by your attorney.

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I. Mistakes:

1. Every deposition witness makes mistakes. Do not become upset if you make a mistake. If you realize that you have made a mistake during the deposition, correct it as soon as possible.
2. If you are caught in an inconsistency, do not collapse. Simply admit that your statements are inconsistent. Do not state the reason for the inconsistency. Your lawyer may want to wait until trial to rehabilitate your testimony.
3. Do not expect to testify without the other side scoring points. Expect that you will have to say some things that help the other side.
4. If at any time you want or need a break, ask for it.
5. No matter how well the deposition appears to be going, keep your concentration. Deposition witnesses make a disproportionate number of errors toward the end of the deposition and toward the end of the day. Examiners are aware of this tendency, and often save their most difficult questions until they think the witness has been softened up. Your testimony cannot be regarded as a success until the entire deposition is concluded.

Summary:

• ANSWER THE QUESTIONS ASKED; BUT DON’T VOLUNTEER – Listen to the question and answer it. Your response should not exceed the question. Don’t volunteer information.
• TELL ONLY WHAT YOU KNOW – Tell only what you know from first-hand experience not what you have heard, what you concluded, what is probably true or anything other than absolute knowledge.
• DON’T SPECULATE – If you hear yourself saying “I guess” STOP! If you don’t know or can’t recall the answer to a question, simply say “I don’t recall” or “I don’t remember.”
• DON’T RELAX – You must concentrate on every word of every question.
• DON’T ANSWER COMPOUND OR HYPOTHETICAL QUESTIONS
• MAKE THE QUESTIONER BE SPECIFIC – Don’t respond to general questions. Ask the examiner to be specific or state that you do not understand.
• WAIT FOR THE QUESTION TO BE FINISHED BEFORE YOU RESPOND – Don’t respond too quickly because you think you know what is being asked. When the examiner is finished, pause – then formulate your response.
• BE TRUTHFUL – Many cases have been lost because of 1 or 2 untruthful answers in a deposition.

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