I’ve been taking and defending more depositions than usual lately, and, naturally, I’ve been thinking a lot about the art of the deposition. Because very few cases get to trial, the deposition is the event during which the key players have their opportunity to tell their stories. It is also often the key event in employment cases that decides whether a summary judgment motion is granted or whether a case results in a fair settlement.
A deposition may feel like a conversation, but it isn’t. It is a tool used by a highly skilled practitioner to lock-in your side of the story, build his or her case through your admissions, and evaluate you a trial witness. As there is a skill in taking a deposition, there is also a skill in testifying at a deposition. The following are my top 10 things to think about as you prepare to give testimony in a deposition.
- Tell the truth. Enough said.
- Answer the specific question asked. Do not volunteer other information. Do not explain your thought process. You are only required to answer the question that is asked. The lawyer on the other side is being paid to ask specific questions to elicit the specific information being sought. Do not do his job for him by unnecessarily offering other information.
- If you do not understand a question, do not answer. Simply say that you do not understand. It is the lawyer’s job to formulate understandable questions, and not your job to guess at what is trying to be asked of you.
- Do not guess. If you cannot remember something, your answer should simply be: “I do not remember.” If you have a vague memory, give that vague memory with a qualification.
- A deposition isn’t a memory test. If you are asked for a time or date, and you cannot recall specifics, it is okay to give an approximation. Just qualify the answer by saying that it is an approximation or an estimate.
- Beware leading questions. An examiner is usually allowed to try to put words in your mouth with leading questions. Do not agree to inaccurate statements contained within the question. To same end, do not automatically accept the questioner’s summary of your prior testimony, unless it is 100% accurate.
- Give complete answers, and then stop. Always finish your answer. If you are interrupted, let the lawyer finish the next question, and then go back and finish your prior answer. If you are finished with an answer and it is complete, accurate, and truthful, stop talking and stay silent. Do not add to your answer because you feel a need to fill the silence.
- Documents. If you think you need a document to help you truthfully and accurately answer a question, ask for it. But, do not agree to supply any documents requested by the questioner. All such requests should go through your lawyer.
- Objections. Even if your lawyer objects, you usually still have to answer the question. You will only not answer if your lawyer expressly instruct you accordingly (usually because the other lawyer is asking about attorney-client communications).
- Humor doesn’t work. Sarcasm and humor do not translate well on the written page. Also, never express anger or argue with the questioner, or use even the mildest of off-color language. A deposition is a professional event, and you should act professionally.