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How to Give Deposition Testimony - Part 2

Saturday, November 9, 2002 | 829 | 0 | min read

Our first articlereviewed the basics of giving deposition testimony. Now we'll review some of the basic rules to keep in mind that will ensure your presentation in a deposition is the best testimony you can provide.

The Truth

Simple as it sounds, there is absolutely no justification for false testimony or embellishment. Tell the truth. If you had a prior injury, tell the truth about it when asked. The other side will discover the truth one way or the other, and lying will be unbelievably detrimental to your case. If you tell the truth you won't forget the details, and it won't be rebuttable. Tell the truth, tell the truth, tell the truth - this cannot be emphasized enough.Just the Facts

Remember, you are only required to give the facts as you know them. Opinions are typically not warranted, and if you are asked a question which calls for your opinion, your attorney will object to the question. The reason is because a deposition is for the purpose of developing a record of FACTS. Experts render opinions, but you are a witness.

This is not to say that giving an opinion is always incorrect. If your attorney then tells you to go ahead and answer the question, you are free to do so. If you do have an opinion you may give it. If your attorney instructs you NOT to answer the question then DO NOT, no matter how threatening or belligerent the opposing attorney may act. It usually just that, an act.

Be Certain

Facts presume certainty. Never provide testimony as fact unless you are CERTAIN of that fact. You may be asked a question by an attorney and feel that you should know the answer and you will be tempted to make something up, or guess. This can lead to very negative consequences! If you do not know the answer to a question, just say you don't know or don't remember.

Keep it Simple

Never attempt to explain or justify your answer. Answer the question with as few words possible. If you ramble and go into great detail, this "free information" will only give the opposing attorney more ammunition for further lines of questioning that may lead to the discovery of facts detrimental to your case that otherwise would not be discovered. So, don't volunteer any information that wasn't specifically asked for.

No Notes

Do not refer to any notes or bring any documents with you to the deposition unless you are specifically requested to by your attorney. Unless the deposition notice, or subpoena states otherwise, documents are not a part of the deposition. You are required only to give the information that you have in your memory. If you do refer to something you wrote down, the opposing attorney will have a right to see it and this could lead to very embarrassing consequences. Do not turn to another witness, if one should be present, and ask for the information. In addition, do not agree to look anything up in the future and then supplement your answer. The attorney can use the proper legal process to get a copy of the record that you may refer to, which permits your attorney the opportunity to review the request, determine whether it is proper, and take legal action as necessary to protect your interests. On the fly at a deposition is not the time to make important decisions about a potentially harmful piece of paper.

Stay Calm

Do not allow the opposing attorney to make you feel angry or excited. This may cause you to say things that you will later regret. Sometimes attorneys make a conscious effort to get a deponent excited hoping for just such a result.Take Your Time

You are the star of your own deposition. Everyone in the room is there because of you. There is no reason for you to rush your testimony. Think about the question, and be sure to take the time to answer the question fully. The opposing attorney may try to rush you. They may try to put words in your mouth. It is appropriate for you to tell them not to put words in your mouth and to permit you to answer the question. Don't Argue

Under no circumstances should you argue with the opposing attorney. Answer the questions in the same tone of voice and manner that you would in answer to your own attorney's questions. The mere fact that you get emotional about a certain point will alert the opposition to an issue of import with you, and could lead to exploration of a topic that would otherwise be ignored. In addition, an emotional answer could end up being a trigger point for an embarrassing situation in court testimony. Stay calm and if you feel excited or angry, ask for a break so you can talk with your attorney or otherwise just get calm again.

Let Your Attorney Speak

If your attorney begins to speak, stop whatever answer you may be giving and allow him or her to speak. If an objection is being made to a question that has been asked, do not answer until your attorney advises you to go ahead and complete your answer. If your attorney tells you not to answer a question, then refuse to do so.

It's No Joke

Never joke in a deposition. The opposing attorney may try to get you to lighten up by joking with you and seeming friendly. This is a ploy to "get you to talk" more. The humor will not be apparent on a cold transcript. A person reading the transcript may also believe that you do not take the lawsuit seriously.

Don't Volunteer

Do not volunteer any information that is not requested. For example, suppose you are asked the following question: "Where were you when the accident occurred." A proper answer is to state where you were at the time of the accident (e.g. address, location on the shop floor, etc.), and nothing more. An IMPROPER answer is: "I was looking towards the back wall when I heard a screeching sound and realized that the piece I was working on was stuck in the lathe so I tried to pull it out." This is a bad answer because you just gave the opposing attorney three things he did not ask: (1) where you were looking; 2) what you were thinking; and (3) what your reaction was. Further, it does not answer the original question. Be Careful with Estimates

Be very careful with estimates of time, speed and distance. This goes to the basic rule to testify only as to fact. Time, speed and distance are factual elements. You don't know the time unless you were looking at a correctly set clock during the moment. You don't know the speed unless you were looking at a properly calibrated speedometer at the time. You don't know the distance unless you measured it.

Rather, it is more appropriate to testify as to a range based on your personal experience. For example, you might say that something was 2 car-lengths away. That is a perfectly acceptable description of space.

It's Over and Leave

After your deposition is over, do not chat with the opponent or their attorneys. Remember, the other attorney is your legal enemy. Do not let a friendly manner cause you to drop your guard and become chatty, which will offer ammunition for later legal attacks.


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