1. Pause and Think Before Answering. Listen to the question. Concentrate on every word and wait until you hear the last word of the question before you answer. In ordinary conversation we cut one another off frequently. In a deposition, however, pause to think before you answer. That way, you will not inadvertently give away information that the opposing attorney never thought of asking for.
Following this rule may seem unnecessary when you are asked simple questions, but follow it anyway. The more the rule becomes second nature, the better able you are to concentrate on the substance of your testimony. Also, the rule permits you, rather than the opposing attorney, to dictate the tempo of the deposition. This will be important if you get tired or feel under pressure. Most important, the rule allows your attorneys to formulate and state objections to questions before you answer.
2. Never Volunteer Information. A lot of damage is done in a lawsuit or a workers’ compensation claim by a “helpful” witness. We all like to be helpful, but it’s unwise in a deposition to volunteer information of any kind. For example, if a friend or co-worker asks you whether you know what time it is, you may say, “ten o’clock”. In a deposition, your answer to that question should be simply “yes” or “no”. If your answer is “yes,” let the opposing attorney follow up with a question, such as “what time is it?” Generally, keep your answers short and to the point. Remember that every word is another target for the opposing attorney.
3. Make Sure You Understand the Question. Never answer a question unless you fully understand it. It’s up to the examiner to frame intelligible, unambiguous questions. If the opposing attorney can’t do it, don’t help.
You may not understand a question because the opposing attorney is imprecise. For example, he or she may ask you if a certain letter was sent after “that.” If you’re not sure what “that” refers to, say that you don’t understand the question. Don’t say, “if you mean this, then my answer would be such and such; if you meant that, then my answer would be so and so.” You may give the opposing attorney ideas that hadn’t occurred to him or her. Say only that you do not understand the question.
If something interferes with your ability to hear the question, insist that the full question be repeated to you. You have an absolute right to ask for clarification of a question at any time. This does not mean that you should be over-technical or picky about every question. But if a question is ambiguous or unintelligible, insist that it be repeated or restated in terms you can understand.
4. If You Don’t Remember, Say So. Sometimes you won’t remember important facts. If you don’t remember the facts that would answer a particular question, say that. The deposition is not a test. If you are pretty sure of the answer but not 100 percent sure, say that. It is extremely dangerous for a witness to testify from assumption rather than memory.
5. Don’t Guess. If you don’t know an answer to a question, say so. “I do not know” is a totally proper deposition answer. Witnesses often feel that they “should know the answer” to a question, then conceal their lack of knowledge by guessing. Everyone–even the opposing attorney–knows that the memory of any witness will have limits.
6. Always Read the Fine Print. Documents often form the central evidence of a lawsuit or a workers’ compensation claim, and they can be a proper subject for questions in a deposition. You may be asked if you are familiar with a certain document; if you are, you may be asked detailed questions about its contents. The lawyer may also read a portion of a document to you and then ask you questions about it. If this occurs, a few rules may be helpful.
First, never testify about the content of a document you are not fully familiar with, unless the document is before you and you’ve been give an opportunity to read it. Second, refer to the document if necessary. If the opposing attorney needs the document to phrase a question, insist that the document be returned to you before you answer. Third, if the opposing attorney suggests that the document states a certain fact, always check to see whether it does before you answer. Sometimes inadvertently, sometimes intentionally, a lawyer may read too much or too little into a document.
7. Silence and Off-the-Record Comments. Sometimes attorneys engage in a subtle ploy of suggesting, by silence, that you should give a different answer. You may become uncomfortable or assume that your answer is incomplete and feel compelled to explain. The opposing attorney may encourage you with silent signals (tilted head, raised eyebrows), or may stare at you with a look of disbelief.
Ignore the silent treatment. When you have answered a question, stop and wait for the next one. Sometimes, the opposing attorney is simply thinking about how to word the next question. You may be tempted to fill the silence with words–don’t.
Sometimes, too, the attorney will “go off the record”; however, he or she can ask you about what you’ve said when you are back on the record. Never say anything in the presence of the opposing attorney that you would not want in the record.
8. Stick to Your Answers. You may hear the same question more than once. The opposing attorney may ask the same question 10 different ways and then ask it once more prefixed by, “I cannot remember if I have asked you this, but ….” Attorneys usually use this tactic for one of two reasons: they’re trying to get a different answer by changing the form of the question, or they’re trying to emphasize something that they think strengthens their case.
If your original answer was accurate, stick to it. The fact that the opposing attorney keeps coming back to the question does not mean that you are not answering properly.
9. Objections. I may object to certain questions. Try not to be distracted by that. If I object, stop and wait for me to finish. The court reporter will note the objection for later ruling by the judge. You will usually be expected to answer. Occasionally, however, I may instruct you not to answer the question. In that instance, and only in that instance, do not answer.
10. What Happens After the Deposition. Under court rules, you have a right to read the transcript of your deposition and correct mistakes, and you will then be asked to sign the deposition on a separate form. Sometimes I recommend waiving this process. After a transcript is prepared, I will review the transcript and raise any concerns with you.
Generally, however, the best time to correct mistakes in your testimony is before the transcript has been prepared. There will be periods during the deposition when we can take a break. Raise any concerns you have during the break so we discuss how to correct an error in your testimony or how to raise an additional point that you believe is important.