Depositions are a common tool used in lawsuits. They are formal proceedings that usually take place in an attorney’s office (often the one asking the questions). An opposing party may ask you questions under oath. These are important discovery tools–tools used to help understand the facts of a case. The person answering the questions–the “deponent”–is placed under oath and is required to answer truthfully. Depositions usually have a court reporter (a stenographer) who records every word said.
It is to be expected that you will feel some stress as you are deposed. Below are some tips to help you in your deposition and to help minimize the stress by understanding what will take place and how to handle yourself. Before you are deposed, you should meet with your attorney and prepare specifically–these are general tips only and your attorney’s advice should govern. These are some of the tips I share with my clients.
TIPS FOR YOUR DEPOSITION
- Tell the truth. Be careful to tell the truth accurately based on your actual, personal knowledge. You can’t change the past—the facts are what they are. We can work with the real facts as they are, but we can’t fix a lie. A lie can ruin your whole case. Sometimes a particular unwelcome fact seems devastating to your case. In my experience, it’s rarely as bad as it seems. Also, telling the truth is much easier than juggling lies and gains you credibility. It may help not to think about why the questioner is asking a certain question—just answer it truthfully and move on.
- Listen to the question. Do not assume what a question is, do not cut off the question, do not answer what you think they’re getting at with it (by, for example, being defensive). Listen carefully to the question, then answer it directly. If it’s a yes/no question, offer the answer simply (yes, no, I don’t know, etc).
- Make sure you understand the question before answering. If you don’t understand the question, have them re-phrase it or repeat it, but don’t respond to a question you don’t understand. You have the right to be asked a question that makes sense.
- Pause before answering. After you hear the question, pause before you answer. This will enable you to make sure you answer carefully and truthfully and will also give me the opportunity to object if it’s an improper question. Also, it helps you avoid giving testimony you don’t intend. Rapid-fire questions and answers can lead to false and devastating testimony. Someone reading a deposition transcript doesn’t care about pauses and often can’t tell if they’re happening, but will be unimpressed with false or inaccurate answers.
- Avoid speculation. There’s a tendency to offer helpful answers, including speculating about things you don’t know. Avoid this trap. Examples: (1) What do you think he was thinking when she said that? (2) How could she have handled that situation better? (3) How much would you estimate the rocks dumped on your property weighed? If you don’t know the answer, say it. You are under oath to tell the truth based on your personal knowledge and experience—speculation, by definition, is outside of both.
- Do not volunteer information. Do not offer information not requested. You may want to be helpful, you may think it’s useful to your case, or there may be other reasons you think you should volunteer information, but don’t do it. It helps to understand that a deposition is NOT an opportunity for you to testify and to tell your side of the story. It’s an opportunity for the other side to ask you questions and see how you respond. You’re under no pressure to tell your story and have it believed and understood. If they ask and we don’t object, they’re entitled to an answer—but only to the actual question asked.
- Listen to my objections. If I object to a question, listen carefully to what I say. If I instruct you not to answer, for example, don’t. For all other objections, you should answer it (if you understood the question) even if I object–I will be objecting to preserve my objection in the record. Generally, I’m not going to object much. Sometimes I won’t object when I could. As a general rule, they are entitled to ask questions and you are required to answer them. Do not ask me, “Do I need to answer that?” If I don’t object, answer it.
- Answer the question fully, but minimally. This is a difficult concept for some. Some attorneys advise to give the shortest answer possible, but that advice can seriously harm your case. If they ask you, for example, “You claim that my client damaged your reputation by spreading lies—what lies to you think he spread?” you don’t want to give the shortest answer possible. In that situation, you want to give a full answer. If you stop short of telling all the lies the other side told, you could seriously damage your case. So the proper rule is to FULLY answer the question, but not say more than what you need to in order to respond. If the questioner asks, “Is that all?” or “Is there anything else?” what he/she is attempting to do is cut off your testimony and ascertain that there’s not more you could say. A good answer here is, “To the best of my recollection at this time, yes” or “That’s what I recall right now, but there may be other things.”
- Be confident and answer accordingly. You are a key witness to your own case. You know information that know one else knows—they do not have your exact experience or view-point, and therefore they don’t have your testimony. You are under no obligation to say what you think needs to be said or what you think the questioner is looking for or to anticipate counter-arguments. Just answer according to the facts you know. If you understand your role properly, then you should be confident and comfortable (if somewhat nervous). Your role is to say what you witnessed if asked about it.
- Take breaks if you need them. You have the right to request a break anytime (so long as you’ve answered the last question). If you need to use the bathroom, need a drink, need to confer with counsel, need to stretch your legs—just ask. You can either tell me in private or just announce it generally.
- Speak well. A certified court reporter—and sometimes a video—is recording your every word. Speak clearly, slowly, and carefully. You should speak to be understood. Do not speak when someone else is speaking. Do not interrupt the questioner. Do not nod, shake your head, use hand gestures to communicate, etc. Answer yes/no questions with an audible “yes” or “no”—do not say uh-huh or anything like it.
- Be respectful. Do not assume your questioner is evil and out to get you—it’s not true, and even if it were, it will not serve you well. The questioner is entitled to ask you questions. You may feel anger and frustration, but don’t let them seep through. If you feel yourself losing control, ask for a break. Anger can make you violate these rules. Stay in control. Take the question at face value and answer it accordingly. Don’t try to read things into the question. For example: “Are you saying that you expected my client to know about _____ after reading this e-mail?” That may sound argumentative, but it’s a fair question and should be treated that way. A simple yes (or no) would suffice. If you and the questioner lose your tempers, you will lose every time—it’s your testimony, your reputation, your statements at issue in the case, not his or hers.
- Estimates. Sometimes asking for an estimate is not speculation. For example: “How many times would you estimate that you claim my client said that?” or “How many square feet would you estimate _____ is?” or “How big is your roof?” It’s a fair question—just make sure you make it clear that your estimating. “I would estimate that my roof is 1000 square feet, but that’s just a guess—I really don’t know exactly” is a good answer to that last question.
- Quotations. If you’re saying what someone else said, make it clear if it is a direct quote or if you’re paraphrasing him or her.
- Avoid absolutes. Don’t say “always” or “never” or anything like it. If, for example, you testify that you’ve never been late on rent or always pay bills on time, then it’s easy to impeach your credibility. If they can show that you were late once, you will look like a liar.
- Be careful in testifying about documents. If shown a document, don’t summarize what it says. If you’re asked what you think it means, be careful—if you testify that a 10-page contract, “means that your client was going to buy my land,” it clearly says a lot more than that, so be careful. It’s better to say, “I understood this contract to mean that your client had to buy my land, among other things.” If you’re asked to talk about a document that you don’t have before you, mention that you need to see it to answer completely and accurately. Be careful interpreting dates, names, signatures, written notes, and other things about a contract. Some things could be added in later, some could involve messy handwriting, etc—only say what you know. Also, don’t vouch for the accuracy of a document unless you know it’s accurate. For example: if asked if a document the questioner shows you is accurate or authentic, you can say, “I’m not sure—it looks a lot like the document, but I’m not sure if this is it or not” but should avoid saying, “Yes, that’s authentic.” Again, just be careful to not assume you know more than you do.
- Correct your mistakes. If you realize that something you said was not accurate, or complete, or erroneous, correct it at your earliest opportunity. Clarify and correct your testimony. If you have to eat crow, eat it young.
- Be careful with your tone. Don’t joke, don’t get too relaxed and comfortable, don’t be chatty, don’t swear, don’t be rude, etc. It’s helpful to think of everything you saying as being a permanent record—because it is.
- Beware of fatigue. I’ve watched a client give great testimony for 6 hours, then say whatever the questioner wanted at the end because he was tired and mentally exhausted. Even with a strategic break or two, he was too fatigued to give accurate testimony—he just started agreeing with the questioner. Endure patiently the deposition and get to the end without quitting. Fatigue can cause bad answers and bad testimony and can destroy your case. If you can’t think straight, ask for a break. Bring a snack with you. You can stretch your legs. But they’re entitled to depose you and fatigue is not an excuse, so be prepared to persevere and avoid mental exhaustion.
- A successful deposition is an accurate one. You can’t win your deposition. You should consider it a success only if everything you said was true and you were clear in your answers. This is the opposing party’s chance to get information from you, not for you to win or be victorious. It’s not a debate and it is not a level playing field. Understand your role, and you should be fine.