Witness Instructions for a Deposition
A deposition is the act of taking sworn testimony whereby litigants obtain information from each other in preparation for trial.
A court reporter is present and begins the proceedings by administering the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury.
The chief value of a deposition, as with any discovery proceeding, is to give all litigant parties in a contested case a fair preview of the evidence so that a “level playing field” is achieved and surprise (traditionally regarded as an unfair tactic) is avoided at time of trial. Another benefit of deposition is to preserve a witness’s recollection while it is still fresh, though the trial may still be some time later. In the event a witness is unavailable for trial, his deposition testimony may be read before the jury and made part of the record in the case, with the same legal force as live testimony.
- Tell the truth. Never vary from this rule. You can be truthful and tell the truth in a way that helps. You can be truthful and say it in a way that hurts. Think through your answers to the issues in the lawsuit thoroughly. Do it beforehand. As a witness you are sworn to tell the truth, and you must do so. No one, not your employer or your attorney, is telling you otherwise.
- Resist the temptation to be helpful, to volunteer information or to become the teacher. Remember this is not the time or place for putting on your case. Just answer the question that is asked! Then stop and wait until the next question. The most frequent mistake made is volunteering information. Don’t! Just answer the question and then stop!
- Remember your personal behavior and personality will be scrutinized by the opposing attorney. Speak clearly and slowly.
- Dress appropriately and get adequate rest beforehand. A good night’s sleep is vital. Have your lawyer answer your questions about the deposition before it begins and when you have privacy.
- Be confident, not cocky. Make sure your attorney has answered any important questions in your mind about the deposition procedure before it begins.
- Be precise. If you cannot be reasonably precise, just admit you do not know the answer. Don’t guess. It is okay to say, “I don’t know the answer,” to the question.
- Be polite but firm. Relax. Don’t feel compelled to speak just because there is a long silence.
- Don’t attempt to persuade the opposing lawyer that we’re right and his client is wrong. He just wants to win his case. The more information you volunteer to him, the better informed he is.
- Don’t anticipate the questions. Do not interrupt the question or improve the question so as to remove problems with the question.
- Listen to the question, not the tone with which it is asked. The opposing attorney may attempt to provoke you deliberately as a tactic. He may hide a particularly nasty or tricky question in a soft voice and a soothing manner.
- Listen to any objection by your lawyer but understand your lawyer cannot use objections to “coach” you how to answer the question.
- Be sure you understand the question. Do not answer the question if it purports to summarize your opinions or your earlier testimony but is inaccurate, even if only slightly so. Don’t answer the question if you don’t understand it. Tell him you don’t understand the question. State that the summary of your testimony contained in the question is wrong. The attorney can ask you “loaded” inaccurate questions. You have to be alert to the misstatements in the questions. Pay particular attention to questions that begin with “don’t you agree” or “isn’t it true”.
- Take time to think about the question and your answer. Don’t fix his question. If it is poorly worded, don’t say: “are you asking me this” and then proceed to fix his question. If the question is “broke”, don’t fix it.
- If you are given a document, always read it entirely before answering. Continue to refer to it when answering any question about a document. You are entitled to a copy when answering. Do not answer a question about a document without the “complete” document in front of you.
- Complete your answers even if the attorney interrupts you.
- Do not make promises or offer to make drawings, do calculations, collect documents or conduct research of pledge to do so. If requested, tell the opposing attorney to discuss that with your attorney after the deposition.
- Correct any prior answers if you decide your previous statement was incorrect or inaccurate.
- Never lose your temper even if provoked. This may well be a “test”. Don’t lash out.
- Do not assume false facts. If it is not so, insist it is not so. Answer such a question only if your attorney tells you to answer.
- Do not play lawyer.
- Do not argue. Just stand on your position. If you are asked essentially the same question several times, give exactly the same answer each time. Often this is a tactic to get you to change the answer you gave which the attorney does not like. Instead, if you are asked the very same question you just answered. Just say: “same question, same answer.” When he asks the same question again, give him the same answer again.
- Testify from your own knowledge only unless hearsay is specifically requested.
- Accept responsibility for your and your employer’s actions, procedures and decisions. Do not retreat just because you are under attack.
- Never guess or estimate. If you don’t know the answer, the correct response is “I don’t know.” Don’t constantly use hedge words such as “it’s just my opinion” or “I’m, not sure.” Overuse of hedge words gives the impression you don’t know what you are talking about.
- There may be times when you cannot remember an answer. Do not be afraid to say that you do not remember the answer at this time.
- Speak clearly and avoid non-verbal answers (such as head nods) so the court reporter can accurately record your response.
- If one of the lawyers makes an objection, stop and wait until the lawyers are finished. Do not be distracted by their arguments with each other but listen to what they say. Be aware that your lawyer has very limited authority to instruct you not to answer a question, especially in federal court.
- Do not hesitate to ask for a break if you need one, or if you wish to seek legal advice from your counsel. Any comments you made during the break heard by the opposing attorney likely will result in you being questioned about the comment after the break. If he asks you after the break if your lawyer told you how to answer the question, tell him no! Don’t go too long without a break. Try to take a short walk during the break. Splash water in your face in the restroom.
- Do not think that you can end or shorten the ordeal of cross-examination by making concessions to the attorney questioning you. That will prolong the deposition. He will see you are willing to agree to “anything” in the mistaken belief that this will end the questioning.
- Do not bring any notes or other materials to the deposition without the knowledge and advice of your attorney. Show your attorney what you have brought while you are out of the presence of others. Do it before the deposition begins.
- Do not answer any hypothetical questions unless the question incorporates sufficient facts, circumstances, and conditions to allow a full and fair response. If it does not, just tell the opposing counsel there are not sufficient facts for you to form an opinion and answer under oath.
- Insist that your attorney spend the necessary time to prepare you. Don’t wait until the last minute. Otherwise, an emergency can cut short the time necessary to prepare. Discuss candidly any potential problems or significant issues you are aware of with your attorney when preparing for the deposition.
- You may consult with your attorney to determine whether a privilege should be asserted (federal court) or to seek legal advice. Your attorney cannot and will not “coach” you how to answer the question at a recess or break.
- You are entitled to a complete copy, not a partial copy, of any document. If presented with a surprise document, you can take all the time you need to study before you answer any questions.
- You are entitled to all the time you need if asked to for example, interpret statements made in competitor’s or other’s correspondence.
- You should not agree to waive your signature on deposition. Insist upon your right to read and sign the deposition transcript before it is filed with the court. Correct any mistakes in the deposition transcript promptly after the testimony has been typed and bound. Review the transcribed deposition yourself as soon as possible for any corrections. You can discuss them with your attorney but, again, he can’t tell you how to answer or what to say in an errata sheet. Make notes on a separate sheet as you review the transcribed deposition. Take the time to think through your correction before making it on the errata sheet. It’s wise to do a draft and then come back to it. Your errata sheet can “correct’ any mistakes or incomplete answers you made but the original answer is not deleted from the deposition transcript. That is one reason preparation is so important.
- After the deposition, if you recognize new matter or problems that weren’t recognized beforehand, bring these to your attorney’s attention.