QUERIN LAW: Giving Deposition Testimony Under Oath

Posted on by Phil Querin

Scales of JusticeEver had your deposition taken?  For some, it’s a fearful experience; for others, it’s easy-schmeezy.  Frankly, as a litigation attorney, I’d prefer my clients have a healthy respect for the process and come very well prepared.  Clients should not be too comfortable with having their deposition taken, since it can spell disaster if they let their guard down, get too conversational with opposing counsel, and find themselves saying something that opens a door down a path they never wanted to go.

So, what follows is a list of Do’s and Dont’s I’ve given to clients who will be having their depositions taken.  Hope it helps.

  • Tell the Truth.  Always Tell the Truth!  You are under oath and an intentionally false answer may constitute a crime.  Falsehoods on the most minor or irrelevant points may be used to attack your credibility on more important issues.  Be honest and as accurate as you are capable of being!  Besides, the truth is much easier to remember than a web of lies.
  • Do Not Bring Any Materials to the Deposition (unless subpoenaed by the examiner).  Any materials you may wish to bring to the deposition should be specifically reviewed in advance by me.  Anything you review at the deposition, including personal notes, may be requested for examination by opposing counsel.
  • Expect to Be Asked What You Have Done and What Files You Have Examined in Preparation for Your Deposition.  Discuss this subject with counsel before the deposition.
  • Listen Carefully to Each Question.  Be sure you understand it entirely.  Do not answer a question you do not understand.  If you do not understand the question, say so.  Do not hesitate to ask for clarification or for a rereading of the question.
  • Pause Before Beginning Each Answer Answer slowly.  This gives you time to reflect on the question, and it gives me time to formulate and interpose objections.  The written transcript does not reflect how long you take to answer a question or how long you pause.  A deposition is not a conversation, but rather a series of questions and answers.  Give careful consideration to each question.  Stop answering immediately if I start talking.  On complicated or difficult questions, you may state that you need time to consider before answering.
  • Pay Close Attention to the Question.  Questions may contain facts which you do not know to be true.  Do not have the examiner put you in the position of adopting half‑truths or unknown facts on which further questions may be based.  Listen to the whole question; the examiner may tag something objectionable on at the end.
  • Speak Slowly, Clearly, and Audibly.  This is important so that the court reporter will be able to take down every word.  Let the examiner complete the question before you begin to answer.  Say “yes” rather than “uh‑huh” and “no” rather than “Huh‑uh.”
  • Do Not Be Influenced by the Examiner’s Friendliness.  Do not be concerned about rewarding the other lawyer for the kindness or concern shown to you; he’s not doing it to help you.
  • The “Whole Story.”  Do not be concerned that the examiner has not elicited all relevant facts, or that the questions and answers create only a partial picture.  You will have an opportunity at trial to present additional testimony on matters not inquired about on the deposition.
  • Answer Only the Question That Is Asked Do not anticipate questions.  Do not volunteer information.  Keep your answers short.  “Yes” or “No” are satisfactory answers.  When a short answer would be misleading, however, you have a right to explain your answer.  If you don’t know the answer, say only “I don’t know.”  If you cannot recall, say only “I cannot recall.”
  • Stay With What You KnowDo not hesitate to say that you do not know.  Do not volunteer who might know.
  • Do Not Guess, or Offer an Opinion, Unless Specifically Requested to Do SoIf you do not know the answer, say so.  If you have no personal knowledge, so indicate in your answer.  Do not venture or guess or offer an opinion unless it is specifically called for and then only after giving your counsel an opportunity to object.
  • Where Appropriate, Qualify Your Answers With Words Such as “To the Best of My Recollection,” “As Best as I Can Recall,” “My Best Recollection Is,” “I Believe . . .”  Be as specific or vague as your memory allows.  Where you are sure, do not hedge or unnecessarily weaken the force of a strong answer.  If you are not sure, then you should indicate that you are not sure.
  • Avoid Absolutes Unless You Are Positive They Are Accurate I “never” or I “always” have a way of coming back to haunt you.
  • Try Not to Answer Two Questions at Once.  If the examiner asks you two questions, find out which one you should answer.
  • Listen Carefully to Objections.  If an objection is raised to the question, listen to the objection very carefully.  You may learn something about the question from the objection.  Give the lawyer the chance to complete the objection before you answer.
  • Conference With Your Attorney and Breaks.  If you wish to confer with me, indicate that you wish to do so before responding.  You may also confer during a break.  Feel free to request a break if you feel tired or uncomfortable at any point.  If I suggest you need a break or indicate a desire to confer with you, always agree before proceeding with your testimony.
  • “Off the Record” Discussions in the Deposition Room If you have conversation with someone in the deposition room when the examiner is present, be prepared for questions on that conversation when you are “on the record.”
  • Do Not Feel Compelled to Speak Simply Because There Is a Moment of Silence.  Sometimes, after you give an answer, there will be silence.  The other lawyer may be thinking how to word the next question.  Silence sometimes makes a witness uncomfortable.  You may be tempted to fill the silence with words.  Don’t.  Keep quiet and wait.
  • Satisfied with Answer? As long as you Are Satisfied with your answer, do not be concerned whether the examiner understands or seems to understand what you are saying.
  • Do Not Make Promises Don’t agree to look up information, to obtain materials, to make calculation, etc., unless cleared first with me.
  • Indicate Whether You Are Paraphrasing or Quoting.  In testifying regarding conversations, make it clear whether you are paraphrasing or quoting directly.
  • If You Are Interrupted, Say So Let the lawyer finish the interruption and then firmly but courteously state that you were interrupted, that you had not finished your answer to the previous question, and then complete your answer.  You may ask to have the question and answer read back if that would be helpful to allow you to collect your thoughts.
  • If You Realize That Your Earlier Answer Was in Error or Incomplete, You May Correct or Supplement It You should not say that an earlier answer is true if you become aware that it is not.
  • If Asked About a Document, Read it Carefully Before You Begin to Answer If you do not recall the document, or do not know with an absolute certainty exactly what the document says, or what its author meant, say so.  Don’t guess at what may have been meant.
  • Be Courteous and Civil.  Do not argue.  Avoid any display of hostility.  Don’t be coy. An effort may be made to provoke you in the hope that anger will cloud your judgment.  Don’t let this succeed.  Keep your temper.
  • Avoid Any Attempt at Levity or Sarcasm It will appear you are not taking your oath seriously if you make jokes or wise‑cracks.  As your tone of voice ‑ irony, sarcasm, sadness ‑ is not reflected in the transcript, it may convey the exact opposite impression from what was intended.
  • If Advised Not to Answer by Your Counsel, Do Not Answer Even if You Believe the Answer Would Be Helpful If you feel the advice was erroneous, request a break to confer with counsel.
  • Do Not Worry About Whether Your Answer Helps or Hurts the Case.  You have enough to do in concentrating on the accuracy of your testimony in order to preserve your credibility at trial.  There is usually some good and some bad in every case.  The only “right” answers are careful, honest and responsive answers.
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