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Thursday, 21 January 2010 00:00

The Art of Deposition Testimony (or “Oh my God, why do they want to talk with me?”)

If you are ever involved in civil litigation as either a plaintiff, a defendant, or as a witness, you may be called upon to give a “deposition.”  A deposition means that you are testifying under oath but not in court.  Dempsey, Williamson, Kelly & Hertel, LLP has long maintained a substantial litigation practice.  Our experienced lawyers can ably assist you in litigation, whether you are party to a lawsuit, or called as a witness.

What is a Deposition?

A deposition is the act of testifying under oath as a witness in a legal proceeding, with the testimony recorded to be used at a later date.

Why do attorneys use depositions?

They do so for several reasons, including: possible impeachment of later testimony; to obtain admissions; to obtain and preserve evidence; to clarify the issues for trial; and to evaluate the witness prior to trial.

What is the deposition process like?

It is an informal process, usually in an informal setting, such as a law office, conference room, or hotel conference room, rather than in a courtroom.  It usually occurs early on in a case, during what is called the “discovery” phase prior to trial.  There is no judge or magistrate in attendance and it is not open to the general public.  Attendees usually consist of the parties to the lawsuit, the parties’ legal counsel, the person whose deposition is being taken (the “deponent”), and a stenographer to transcribe testimony and produce a written transcript.  Other potential witnesses or interested parties are generally excluded.

Usually, all of the participants are seated around a conference table, with the deponent who is being questioned seated close to the stenographer.  The deponent will be asked questions by opposing counsel, often as though the deponent was under cross-examination at trial.  Opposing counsel will attempt to discover background information, new facts, and solicit damaging testimony, if possible.  Opposing counsel may, if he or she chooses, use “leading” types of questions with a deponent.

What are some practical tips to help me through this?

Spend time reviewing.  First and foremost, spend some time beforehand recalling and reviewing the facts that 

you will be testifying about.  Take a few moments to review any relevant records or notes, but do not bring any records, notes, or documents with you to a deposition unless you are told to do so.  Our lawyers are very experienced at preparing deponents for a deposition, and can fully assist you to prepare within legal and ethical boundaries.

Know facts and details and personal info.  Be familiar with all correspondence, photos, drawings, etc., or other documents which may be important to the case and about which you have direct knowledge.  Know your personal background information, current and past employers and addresses, and the department, division, or group organizational structure you work in if relevant.  These are all “everyday” facts that you should be familiar with, but you would be surprised at the number of people who are deposed who “draw a blank” when asked some very simple questions in this area.

Understand the question asked.  Be sure you fully and completely understand a question before you answer.  If you do not understand the question, or it seems too complicated, make no attempt to answer but instead ask that it be re-phrased, be stated in a different way, or broken down into smaller, simpler pieces.  An inaccurate answer to a misunderstood question could materially affect the results of the case.  As a deponent it is your responsibility to think before you answer – and give your legal counsel time to object to the question prior to your attempt to answer.

Answer the question as briefly as possible.  When answering a question, if possible, try to use a “yes” or “no” answer.  Do not volunteer additional information that a question does not call for, unless it is necessary to make your answer not misleading.  Answer only the question asked.  Do not guess or speculate about an answer.

Maintain a pleasant demeanor.  Answer all questions with a polite and cooperative attitude.  Try to remain calm, particularly if you think you are being “badgered” by the questioner.  Your lawyer will be present and he or she will do whatever is necessary and effective in the circumstances to protect you from any overzealous or intimidating tactics.

Avoid exaggeration.  Exaggerating is a form of untruthfulness.  Do not try to improve on the facts.  The facts are the facts.  Trying to exaggerate invariably is recognized by opposing counsel for what it is, and he or she will later exploit it to undermine your credibility at trial.

Make an effort to enunciate clearly. Since your testimony is being recorded by a stenographer, make an effort to enunciate clearly.  Speak audibly and in a normal tone of conversation so the stenographer can record precisely what you say. Avoid non-verbal communication, such as nodding your head, shrugging your shoulders, etc., as these physical gestures cannot be captured in writing by the stenographer.

Present your best appearance. One of the objectives of a deposition is for legal counsel to get a “preview” of what you would be like as a witness at trial. Opposing counsel will be appraising you and making some tentative evaluations of how you will impress the jury.  So, it is best to make a good first impression.  For the deposition dress neatly and conventionally.  Be articulate and confident.  Stay interested in the questions and the process, and project a sincere, candid demeanor.

Contemplate dates, times, and measurements accurately. The case you are involved in may turn on a crucial fact.  Very often, deponents are careless with respect to dates, times and measurements.  An inaccurate answer is often the result of not giving the subject sufficient consideration.  It is important to review these kinds of details in advance.  Don’t allow yourself to be forced into a guessing game with opposing counsel.  If your best judgment is asked for, and based on the information you have, you are unable to make a reliable judgment, say so.  You can certainly also say that it is not possible to make a reasonable estimate with the information that you have, and you would only be guessing.  Also, if you cannot be certain of a fact, say so.

Do not qualify favorable facts. Answer questions concerning favorable details of your case as positively and definitively as possible.  If you know you are certain of your answer, avoid expressions like “I think” or “I guess.”

Conclusion

With depositions, as with other things, we often fear what we do not understand.  This article is designed to give you that basic understanding.  Understanding the deposition process, and taking the time to prepare in advance, will enhance the prospects of a successful conclusion to your case.  Our attorneys can ably assist you with this preparation.

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