Approximately 90% of lawsuits settle after deposition and before trial.  Depositions allow opposing counsel to both fact-find and assess a witness's demeanor, likeability, clarity, credibility, composure and reliability.  This insight assists in determining how a witness may present themselves and the facts during a trial.  Depositions also aid in determining settlement values.  It is wise to view and prepare for a deposition from the perspective of it being a mini-trial. 

 Twelve Golden Rules for

Deposition Do's and Don'ts

(Always clarify these with legal counsel)

Rule #1 – Take your time.  Speak slowly and clearly.  Think before you respond;  there is no rush. Taking time to give a thoughtful answer helps you absorb more readily what is actually being asked and what your best answer will be. 

Answer out loud and with words, not by shaking your head, meaning “yes” or “no” or by saying “uh-huh.”  The court reporter must be able to understand you to make an accurate record.  Wait until the lawyer finishes asking the question before you begin to answer.  The court reporter can only record one person talking at a time.  Again, there is no rush...even if opposing counsel tries to pressure you. 

Rule #2 - Don’t volunteer information.  Your role at a deposition is to simply answer the other attorney’s questions.  Listen to the question and then answer only the question asked. 

It’s human nature to want to explain things so that your listener understands. Resist the impulse.  It’s the opposing attorney’s job to get the answers.  It’s your job to answer only the question asked and not volunteer any additional information.

Rule #3 - Don’t guess.  You are in a deposition to give facts, not to try to figure out what might have happened.  Acknowledge if you don’t know, can’t remember or don't recall. If you don’t know the answer to the question asked, say “I don’t know” or "I don't remember" or "I don’t recall.”  Those are honest, acceptable answers to questions. "I don't know" is completely true if you have no knowledge of something.  "I don't recall" or "I don't remember" leaves the door open for a later recollection, should that occur.  Sometimes attorneys press you to give your "best estimate" of a given point.  If you do not recall or don't know, you might say something like, “My best estimate is that I don’t recall at this time.”  If you feel pressured to respond to something you're uncertain about, one thing you can say is, "Are you asking me to speculate?"  You hurt your case if you attempt to testify to facts you don’t know for certain.   

Rule #4 – Don’t answer questions you don’t understand.  Pay strict attention to the question being asked and make sure you hear the entire question.

Don’t anticipate.  If you are not absolutely sure of its meaning, ask that the question be repeated until it is clear to you.  You can also request that the question be asked in another way that is clearer.  In other words, make sure you understand what the question is that the attorney is asking.  If a question contains two different questions in one, tell him or her you don’t understand and to rephrase the question.  An example of a compound question is: Did you lock your door and set your burglar alarm before you left your apartment?  These are two separate questions. Did you lock your door?  Did you set your burglar alarm? 

Rule #5 – Avoid absolutes and all-inclusive statements.  For example, be very careful about saying things like, “I've never been late with a report” or “I always tell the truth” or "This could never happen."  These types of statements can come back to haunt you if opposing counsel can bring forward anything that indicates even a small exception.  The purpose of opposing counsel doing this is to bring into question your credibility--inferring that other parts of your testimony may also lack credibility.

Rule #6 – Don’t give opinions.  Testify only to basic facts.  Again, take your time when answering and testify to only that which you personally know.  For example, a basic fact would be: “I saw the red car rear end the blue car.”  An opinion would be: “It was clearly the red car’s fault.”  

Rule #7 - Be precise and concise in your answers.  Avoid “I think, I feel, I believe, possibly, it may have been X, or perhaps it was...” These are all speculative.  Also, don't meander around with your answer--get right to the point with as few words as possible.

Rule #8 - Don’t argue, lose your temper, be sarcastic, belittle or use profanity. Regardless of how justified you may be, leave your temper at home.  You may not like the question or even the other lawyer, but arguing or losing your temper will almost always hurt your case.  If you use sarcasm, belittlement, character assassination and/or profanity, these will usually be viewed as something about you being negative and unsympathetic. You may not care what opposing counsel thinks of you, but if a case goes to court you do NOT want to pay for expressing negatively.  Instead, be polite and emotionally balanced.

Rule #9 – Tell the truth.  Answer all questions directly and as honestly as possible. You’re best advised not to lie or attempt to enhance your case by embellishing or exaggerating.  These diminish the credibility of your testimony, rather than enhance it.  The purpose of our court system is to determine what actually happened.  Your role is to give your side of the story as clearly as possible while presenting yourself in a manner other people will respect and understand.   

Rule #10 - Be courteous, respectful and sincere.  "Yes, Sir” or "No, Madam” is not required.  Nevertheless, you want to present yourself as being courteous and cooperative.  If opposing counsel acts aggressively or even rudely, your continued politeness will begin to magnify their rudeness and aid in you appearing more likeable and credible.  Also, don’t try to be funny.  Depositions are a serious business. A joke may be misinterpreted as sarcasm or even a misstatement when the black and white transcript is read.

Rule #11 – Don’t look to your lawyer for help in answering a question.  Your lawyer cannot answer for you; just do the best you can.  However, if you're on a break you can confer with your attorney.  You are allowed as many breaks as you need.  A deposition is not a courtroom.  You are allowed to say, "I need a break."  This can be for such things as going to the restroom, needing to stretch your legs and back, taking medication, checking important phone messages, etc.  Your attorney may make statements like: "I object on the grounds of X" or "Asked and answered" or even "You don't have to answer that."  Whatever your attorney says, stop answering until your attorney gives you the "go ahead."  This may also be your attorney's way of alerting you to pay special attention to how you respond.

Rule #12 – Admit you have prepared for the deposition.  Opposing counsel often asks what you did to prepare for the deposition.  If you are a party to the lawsuit, the details are private between you and your attorney and protected under the Attorney-Client Privilege law.   Almost all attorneys prepare their clients beforehand, in order for the client to give an accurate deposition.  This is entirely appropriate. You can reply by saying something like, "I met with my attorney to prepare for this."  If questioned about details, and you are a party to the case, you can reply, "That is privileged information."  Many times witnesses are asked, “Were you coached?"  You may consider responding by saying something like, “If by 'coached' you mean was I prepared, the answer is yes.”

It is also common for an attorney to talk with a non-party witness in order to understand their point-of-view. Talking with attorneys on either side of a lawsuit is not required of a non-party witness, unless subpoenaed.  A subpoena does require a non-party witness to appear before both sides to give sworn testimony. If you are not a party to the case, you are not protected by the Attorney-Client Privilege law. 

Those are the 12 Golden Rules, the suggested Do's and Don'ts when giving a deposition.  

Reminders:

• Remember to ask for a break if you need one.   If you feel ill, tired, hungry or need a break for any reason, just let your lawyer know and the deposition can stop for a few minutes.  If you leave the room during a break or at the end of the deposition, be sure to take all your papers or materials with you.  During any break you may also confer with your attorney.
• During the deposition, while you are being questioned, if your attorney states an objection, listen.  She may be giving you a signal to pay special attention to the question being asked and to answer it carefully. 

Suggestions:

Other than polite salutations, avoid conversations with the opposing attorney.  Don't be concerned if the attorney representing you greets opposing counsel in a friendly manner.  This is often simply a common courtesy.  Additionally, a cordial relationship between attorneys may be useful if settlement isues occur.  Along with opposing counsel, It is normal for the opposing party to attend, as well.  Don't be surprised or unnerved. Depositions are not social events. 

When going to a deposition, be sure to bring any medical needs, glasses, snacks and layers of clothing, in case the room is very cold or hot.  I also suggest you use the bathroom before starting testimony and drink only water on breaks.  Sugar and alcohol tend to diminish clarity, so it's best to avoid them on breaks.

THREE BIG TIPS:  PROFANITY, CHARACTER ASSASSINATION, CONTINUOUS DISPLAYS OF UPSET, ANGER AND HURT

Never use profanity under any circumstances.  Don’t attempt character assassination to make your case.  Let observers come to their own assessments based on the facts you and your attorney are presenting in a dignified and compelling way.  There’s an old saying: “To belittle is to be little.”  It just doesn’t pay.  Finally, don’t continually display signs of being upset, angry and hurt as they will register to others as being over-blown and exaggerated, and will work against you.

 NOTICE!  Always check with your official legal counsel to verify any advice.  This website is designed and intended for general information only.  The information presented at this site should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.

Under scrutiny it's best to have the scales balanced in your favor.   Preparation is key!   Repetition reinforces.            

NOTICE!  Always check with your official legal counsel to verify any advice.  This Web Site is designed and intended for general information only.  The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.