Giving a Deposition
by John Herrick
|Today, more and more litigation is used where, in the
past, people let "bygones be bygones". Not so much now.
Most professionals are very unprepared for the truck that is about to hit them. The opposing attorney has a job to do: make you look as bad as he can.
This course will help you in getting prepared for the
tremendous emotional strain you will have to endure when you are
DEPOSED, and will help you be prepared when that deposition is
"shoved back down your throat" ... in court.
are a way for the opposing side to get ammunition. Plain and simple.
What you say during the deposition will be dissected and brought back up
during the trial. To the best of his (or her) ability, the opposing
attorney will try to divert attention from the case at hand and place
full attention directly on how "poor" you are at what you do.
happens when you are unprepared.
For two hours the opposing attorney,
and his attorney, hammered away. When they got through with him, John
felt like a washed out, washed up dolt. The opposing attorney,
"Hatchet" Harry, had tried at least six times to make prior
reports that John had written (as well as statements made in the
deposition) seem to conflict and questioned his honesty and his
professionalism. John felt quite "butchered".
The worst part of it was when Harry
picked up John's deposition, looked at the jury (whose eyes were still
returning the look) and said to John, "You have just testified that
your work was done professionally, even though it killed the daughter of
my client. Your explanation has changed completely since your sworn
deposition of three months ago. I am going to read statements you made,
then I want you to tell the jury WHICH
IS THE TRUTH what you said
THEN or what you are saying NOW."
is the crux of the attorney's trade.
This scenario plays itself out every
day across the world. Today's professionals find themselves hauled into
court more frequently. This often comes as a shock to people who have
done an excellent job for years and who have never had their decisions
challenged. Now they find themselves in a morass, from which they have
little preparation to extract themselves.
The plaintiff (the person who
initiates the legal action) files a COMPLAINT with the clerk of
court. The clerk sends a copy of the complaint to the defendant,
the person named in the complaint. Included is a summons to
appear in court and a notice for the defendant to either file an answer
to the complaint or to file a pleading rebutting the complaint.
When the defendant responds, if the
plaintiff and the defendant are not in agreement, the case is said to be
"at issue" and the case is then scheduled to be tried.
Now the real work of the attorneys and
the parties begins. Many tactics may be used, including:
1. Motion for summary judgment- an
offensive move to get the case immediately thrown out
2. Motion to produce evidence
3. Motion to suppress evidence
4. Motion to subpoena witnesses for
The plaintiff's attorney has had a
head start, but now both sides' attorneys begin maneuvering to provide
the best legal and psychological case they can to sway the judge and/or
jury. They conduct interviews with as many people as they can to get the
feel as to whom will make a good impression and whom will not stand up
well in court. They begin defining the strategy that they believe will
present the case to the best effect.
All documents relative to the case are
collected and reviewed. Managers need to be aware of contacts with their
employees, what documents are being viewed, and of how to respond. Other
examples are needed, previous cases, pro or con are reviewed. All the
facts are pulled together.
This second step in the process can
take anywhere from months to years.
step, the "Discovery Process"
Surprise number One: No surprises!
The element of surprise has been
removed from cases as much as possible. Both sides know (for the most
part) what evidence the other has, thus there is no "surprise
witness" who has "all the goods" and breaks the case wide
open. All witnesses and all the data is supposedly shared long before
the trial begins. Included in this, the infamous DEPOSITION.
Professionals usually base their
decisions upon careful analysis of data and thorough planning in order
to obtain the best possible product for the money. The legal system is
confounding to them because it does not seem to work this responsively
or this directly. The situation is beyond their direct control.
Decisions regarding huge sums of money are made by judges and juries who
often do not even understand the technical issues and who may be swayed
by technicalities or seemingly "legal mumbo-jumbo".
Managers must realize that suing and
being sued is a way of life in our nation. Private industry is used to
the concept; many corporations staff the best attorneys that they can
hire. The public sector is not accustomed to being sued, perhaps because
it was shielded from suits for over 100 years by the principle of
sovereign immunity. Now that the courts and legislatures are removing
sovereign immunity, public agencies must learn to function in the legal
environment as well. They must accept the fact that a portion of their
time and resources must be devoted to legal issues.
People Have to Give Depositions
Employees may have to give depositions
for several reasons. First, they or their employer might be named as the
defendant in the suit. Second, they might have firsthand knowledge of
facts pertinent to a case. For example, they might have seen an
accident, or they might have had knowledge of the alleged deficiency,
which caused a problem. Third, they might be called upon as an outside
party to establish the prevailing standard of care. For example, a
plaintiff might call upon the professional to testify which traffic
control devices may be used in a private parking lot, or what period of
time it should take to build the structure in question.
Most plaintiff attorneys will have had
a jump on the defendant's attorneys; they have done extensive work to
determine whether they had a case. They or their investigators might
have had many informal contacts with employees to obtain documents,
statements or interviews.
The Nature of Discovery.
The discovery process consists of a
series of actions sanctioned by the court so that the attorney can
gather data about the issues being contested. There are two guiding
principles to discovery:
Because discovery, if followed
faithfully by each side, will secure a just, speedy, and inexpensive
determination of legal action, the courts generally apply these
principles. In other words, discovery makes it possible for the
strengths and weaknesses of the case to come to the surface as simply,
quickly and cheaply as possible by bypassing many of the formal court
actions. In practice however, both sides allow discovery only to the
extent that they feel they have to. Many is the slip between the cup and
the lip in this matter.
Proceedings May Be Casual.
Those who are called upon to give
depositions are often surprised at the casual, courteous or even
friendly exchanges between attorneys on opposing sides, and between the
attorney and the witnesses. Somehow this does not seem appropriate to
them when the case may involve millions of dollars. Actually, the
attorneys may be practicing gamesmanship while operating under a
well-defined set of rules. An apt parallel to the discovery phase of
civil litigation might be a joust staged by knights of the roundtable.
The knights had clearly defined sets of rules. Even during those life
and death trials, they were determined to respond as gentlemen and to
live within the rules, even to the point of death. As the jousting event
proceeded, they saluted the king, each other and the crowd. They
displayed the utmost in chivalry, even as they prepared to rush toward a
disastrous meeting in center court. Attorneys are acting similarly,
usually in as civil a manner as possible considering the circumstances.
Persons giving depositions are giving
testimony for the court. They are witnesses. They must keep in mind that
they are involved in an adversarial action no matter how casual or
friendly the attorneys may be toward each other or toward the witnesses.
Should the casual, informal air of the proceedings break down, the
attorneys may revert to the full authority of the court to force the
During discovery, the court may
require an attorney for one party to respond to a request from the other
party's attorney. The attorneys are well aware of the rules and
procedures and generally respond to each other's request rather than
revert to allowing the court to force the issue.
The four techniques most commonly
employed by attorneys to gather evidence during discovery include the
(1) Interrogatory: An interrogatory is
a written series of questions about the case that one party submits to
the other party. The person receiving the questions must provide answers
within a specified time period. Normally, the respondent is required to
provide a sworn statement that the answers are true. The practical side
of what one gets as answers to these questions is: as little as the
other person feels that he can get away with. A very detailed question
many times is responded to in two words: "See documentation".
(2) Requests for Admission: These are
written statements of fact addressed to one party by the other party
with an inherent demand for admission that such statements are fact.
(3) Deposition: A deposition is the
sworn statement of a witness taken outside of the courtroom. The
majority of this course will discuss the attributes of depositions.
(4) Production of Documents: This is a
procedure provided by the court to allow one party to obtain written
material from the other party. In most cases this may include items like
plans, drawings, maps, construction diaries, correspondence, other
records, safety surveys and similar information. Any "work
product" (documents prepared in preparation for the case) are not
included in this "discovery", so many try to disguise
documents under this guise, so be aware.
of Civil Procedure
In all states, there are written sets
of rules under which trials are conducted. One portion of these rules is
normally directed toward depositions. Those who must give depositions
would benefit from knowledge of the rules which govern the process.
Understanding the "rules of the game" makes one a better
A deposition is the sworn testimony of
a witness. It is taken outside of court, usually in the presence of only
his or her attorney, the opposing attorney (or attorneys), and a court
reporter. Some of the prominent characteristics of a deposition are
outlined in the following paragraphs.
Notice of Deposition.
The party desiring to take the deposition must give reasonable notice in
writing to every other party to the action. This includes the witness,
the defendant, the plaintiff and the counselors of record for these
parties. The notice gives the time and the place for the deposition and
the name and address of the person to be deposed.
The laws of the
Recording of Testimony.
A stenographer who will later produce a transcription normally takes the
deponent's testimony. It is possible with the court's permission to use
another manner of recording such as videotape.
The two parties in a case may modify the normal procedures used in the
discovery process through written agreement (stipulation). This may mean
changes in the time and place of the deposition, the type of notice, the
manner of deposition, or the person before whom the deposition will be
taken. When the changes are stipulated in writing, the deposition may be
used in the same manner as a deposition taken in full compliance with
The use of written stipulations allows
the free and general exchange of courtesies between members of the bar.
This practice encourages the attorneys to work with each other without
burdening the court.
Production of Documents.
The notice to appear for deposition is frequently accompanied by a
request for production (also called subpoena duces tecum) of books,
papers, documents or other tangible things, which are pertinent to the
case, or which the witness has relied upon in taking actions or drawing
conclusions. At the deposition, the opposing attorney will be allowed to
inspect all materials so produced and to make copies of those materials,
which he or she finds to be pertinent to the case.
After the witness has been sworn, examination and cross-examination of
the witness proceed as permitted at the trial. Cross-examination is rare
and is normally reserved to clarify answers of the deponent.
Either attorney may object at any
point in the deposition to items like the manner of taking the
deposition, the evidence presented, the conduct of either party, the
suitability of a question or any other normal issue. The officer taking
the deposition notes each objection as it occurs. The deposition then
proceeds again as though there had been no objection. Any evidence taken
subject to the objection will be subject to a judge's later ruling as to
the validity of the objection and the evidence.
Motion to Terminate or Limit an
Examination. If it becomes
apparent that the deposition is being conducted in bad faith or in a
manner that unreasonably annoys or embarrasses the witness, the
deponent's attorney may move to terminate the deposition or to limit
examination. Upon demand of the objecting party, the deposition will be
suspended until the court rules on the motion. These motions offer
protection to the deponent; however, their use is reserved for rare
instances of substantial abuse.
Failure to Attend Deposition.
If the party giving notice of the deposition fails to attend the
proceedings, then that party may be ordered by the court to pay the
expenses of other parties, including reasonable attorney's fees.
If the party giving notice of the
deposition fails to serve a subpoena on the witness and the witness does
not attend because of such failure, the court may order the party to pay
the reasonable expenses of all parties or attorneys who did attend.
If the witness, having received
notice, fails to appear at the scheduled place and time, the witness may
be compelled by the court to pay the reasonable costs of the parties.
Processing the Deposition Document.
After the deposition, the testimony is normally transcribed by the court
officer upon the request of one of the attorneys. Occasionally, neither
attorney requests a transcript, so the court officer never transcribes
the tapes. (Usually this occurs when the testimony turns out to be
insignificant.) If a transcript is prepared, copies of any documents
identified as exhibits during the deposition are attached to the
transcribed document. The deposition document is submitted to the
witness for examination. The witness reads the document and notes any
desired changes in form or substance. The witness normally signs the
document and returns it to the court officer, although the witness may
elect to waive the signing.
The officer certifies that the
transcript is a true record of testimony given by the witness. Any
exhibits are uniquely identified as exhibits and appended to the
deposition. It is next filed with the court in which the action is
pending and sent by registered or certified mail to the clerk of the
court. Either attorney may request a copy of the deposition from the
Errors and Irregularities.
All errors and irregularities in the notice for the deposition are
waived unless written objections filed. Any errors or irregu1arities in
the taking of the deposition are waived unless reasonable objection is
made at the time of taking of the deposition.
The courts normally depend upon the
best available evidence. If a person is available to testify in court,
then the live testimony of the witness is the best available testimony.
Any written record of what the witness said previously would be
inferior, secondary evidence (hearsay) and would not be admitted.
Depositions are normally not allowed in court because they may be
The following are a few of the
instances when a deposition might be admitted as evidence during a
If one party introduces part of a
deposition as evidence, the opposing party may require that in fairness
the entire deposition be introduced as evidence, so that the part to be
considered can be correctly interpreted. When deposition testimony is
admitted, it is subject to the other normal rules of evidence.
Throughout the discovery period, the
attorneys for both sides are maneuvering to find the evidence that best
supports their positions. At some point, your attorney might identify
you as a witness. The opposing attorney will then ask to depose you to
discover what you are planning to say at trial. Usually, the legal
proceedings will have been underway for several months prior to your
receiving notice that your deposition will be taken.
Frequently, the first indication that
you are being deposed will be a telephone call from your attorney. You
will learn that your name has been given as a witness and that the
opposing attorney wants to take your deposition. At the same time, your
attorney might inquire as to your schedule over the next several weeks
so that a suitable date might be found. Receiving notification in this
manner means that the attorneys are practicing normal courtesies toward
each other, attempting to make the proceedings as convenient, direct and
economical as possible.
Less frequently, you may receive
notice of a deposition in other ways. For example, the opposing attorney
may send you a copy of the notice that your attorney receives. You might
also receive a subpoena indicating the date and location of your
deposition; however, it is rare to be subpoenaed without having first
received contact from your own attorney.
A new witness may be overwhelmed by
the complexity of the legal system. There seems to be so many things to
learn, and so many things that the opposing attorney might ask. The law
may be seen as an imposing barrier.
The law becomes easier to understand
if the deposition process is broken into several component parts. As
each component is understood, the employee's confidence can grow. At the
same time, his or her proficiency at giving a deposition and
effectiveness as a witness will increase rapidly.
The following components are rational
steps in the deposition experience:
Each of these components is addressed
as a major portion of this paper. Some of these steps are simple, while
others will take time and experience to master.
for the Deposition
If there is such a thing as a secret
to giving a deposition, it is in total and complete preparation. Lack of
preparation is not an excuse for a crisis but it may well cause one.
Preparing for a deposition involves
working hard and spending lots of time. First of all, it means
conducting long discussions with your attorneys and depending upon their
advice. It means learning what the case is all about and why you or your
agency is being sued. It means reviewing your files and your agency's
files and knowing what standard of care governs the issues of the case.
Several appropriate preparation topics are discussed in more detail in
the following paragraphs.
Visit with Attorney.
Upon receiving notice that your deposition is to be taken, your first
action should be to telephone your attorney. Have a brief discussion to
find out the general aspects of the case if you are not already aware of
them. Schedule time for an extended work session with the attorney. The
purpose is to learn as much as possible about the case and especially
about your role in the case. I will use, as an example, a negligence
suit involving an automobile accident in which your agency is alleged to
have been negligent in designing, constructing, maintaining or operating
the roadway. Learn from your attorney as many details as possible about
the allegation. The attorney should help you understand enough about the
legal issues so that you can be prepared to speak from a position of
knowledge at the deposition. During this preliminary meeting, you may be
able to assist the attorney by explaining the technical aspects of the
case. You also may be able to identify department policies, guidelines
or documents pertinent to the issues.
Do not leave this meeting without
identifying your specific role in the trial and what the attorneys for
both parties are attempting to establish through your testimony.
The Attorney May Limit Your
Preparation for Deposition. In
some circumstances, an attorney may prefer that the deponent do no
preparation (or limited preparation) before a deposition. Your
attorney's strategy at this point might be to minimize the amount of
material the opposing attorney may "discover" during the
deposition. A witness who does not prepare will not be able to recall as
many specific facts while testifying (i.e., names, events, documents or
dates). The tactical, short-range goal of your attorney may be well
served by limiting the education of the opposing attorney.
Unless you have asked your attorney
and were told to limit your preparation, plan upon doing a lot of work
to get ready. Even if you are told to limit your preparation for
deposition, your attorney will probably want you to prepare exhaustively
for a later trial.
Legal Basis for the Suit --
Negligence? Virtually all of
the suits against traffic agencies are filed upon the grounds of
negligence. It is important for the witness to understand the legal
basis of a lawsuit. To win a negligence case, the plaintiff's lawyer
In its simplest form, the definition
of negligence may be reduced to the failure to use due and reasonable
care. Stated another way, a jury might ask itself, "What would a
reasonable man have done in these circumstances?" in trying to
decide a negligence case. The witness should keep the definition of
negligence in mind while preparing to give testimony.
Your Agency's Documents.
The jury, in attempting to do its job, will try to measure the
defendant's actions against the established standard of care for the
situation. The standard of care may be the agency's own guidelines and
standards, or it may be a widely accepted national publication such as
those provided by the American Association of State and Transportation
Officials. One of the deponent's first actions should be to determine
which guidelines, documents, or policies are applicable. Copies should
be obtained and examined prior to the deposition. While reviewing these
documents, it may become quite apparent that the agency had planned
wisely and had conducted its actions within carefully crafted
guidelines. On the other hand, it is possible that the opposite was true
-- the agency had no guidelines or its employees were operating outside
of them. In either case, the agency's attorney needs to be informed of
the facts so that he or she can make intelligent decisions in planning a
strategy to handle the case.
During the review, the witness might
make photocopies of the pages of guidelines or policies that apply to
the case. For each document, include a copy of the cover for
identification purposes. These copies will come in handy while talking
with the agency's attorney and while giving the deposition.
Traffic Accident Report.
The majority of negligence cases involve traffic accidents. It is
helpful to learn the details of the traffic accident at issue in the
case. This involves obtaining and reviewing the law enforcement agency's
accident report. It may show activities on the part of the plaintiff
that contributed to the accident. It might show road defects, missing
traffic control devices or other facts of which you should be aware
prior to giving testimony.
Check to see whether your agency had
performed previous safety studies at this location. If so, become
familiar with the results of those studies. If changes to the roadway
had been recommended as a result of this or other studies, determine
when the changes were made. If the changes were not made, determine why.
Often the changes were found to be marginally effective and thus not the
best use of the agency's safety money.
It is helpful to review the accident
history of the location, especially when the review is performed with an
agency employee familiar with interpreting accident data. Look for
patterns that have occurred at the site, especially patterns of injury
It is helpful to visit the accident location while preparing for the
deposition. Carry any available photographs, plans and copies of the
accident report. While at the site, try to view it through the eyes of
an out-of-state driver who had never traveled this route before. Your
visit may identify missing or defective traffic control devices, sharp
turns, sunlight in the driver's eyes, or other factors that might help
explain the accident. If you determine that your agency had not
performed as well as it should have (i.e., missing signs, low shoulders)
do not hesitate to tell your attorney. You are seeking the truth
whenever you are involved in a legal action.
Ask your attorney if you should review the interrogatories and other
documents which might be used in the case. These will provide an
overview of the case which might help you direct your testimony toward
the key issues. In addition, review any information which you might have
been asked to provide to the opposing attorney.
The bulk of the preparation for the deposition should be done early. It
is unfortunate if the witness does not begin soon enough to allow
sufficient time to complete the preparation. Often it is impossible to
tell how much time will be necessary until the documents and evidence
have been secured and reviewed, so start early.
After the initial preparation has been
completed, there are several actions which may improve the quality of
the deposition. One of these is a final visit to the attorney. Another
is a brief "refresher" review of the evidence.
The final visit to the attorney should
be conducted on the day prior to the deposition or early on the day of
the deposition. The meeting should be a brief session. It normally
concentrates upon the present status of the case and the witness's role
in the case. Major points of evidence may be reviewed and summarized.
Many witnesses have developed a list of issues or questions which they
wish their attorney to address at this meeting. The attorney may wish to
offer information regarding the personality and mode of operation of the
opposing attorney. It may be helpful for the witness to know the type of
questions which may be asked. During this preparation, your attorney
will refrain from placing words in your mouth; however, he or she may be
able to give helpful pointers for answering certain types of questions.
Practice answering questions given by your attorney until you are
The second activity that might improve
the quality of the deposition is a brief review of the facts. It is
helpful to organize your file and to prepare a short outline of the
important points to which you and your attorney feel you should testify.
A good night's sleep and a clear mind usually improve the attitude and
performance of the witness. Arising early on the day of the deposition
and reviewing the outline may provide a refreshing approach to the case.
This last review should be limited to the prominent points to be covered
in the deposition. It is not an appropriate time for the witness to try
to "cram for the big test".
The notice of deposition often
includes a request that the witness produce documents from his or her
file. Typically, these are documents which the witness has used and
which will have a direct bearing upon the case. A normal request might
be for any maps, construction diaries, accident information, notes from
investigative reviews, or standards and guidelines related to the case.
As soon as you receive such a request, discuss it with your attorney.
Remember that anything carried into
the deposition is discoverable by the opposing attorney. Prior to
entering the deposition, show the entire file to your own attorney. He
or she will want to review the file to filter out privileged information
such as reports prepared at the request of the attorney for use in court
on this case. The attorney also may remove non-germane material.
Basically it is best if the file contains the facts and data
specifically called for by the opposing attorney, or upon which the
witness will reply in giving testimony. In addition, you might wish to
have a copy of your curriculum vitae for the opposing attorney.
Since your file is discoverable, the
other party's attorney may spend as long as necessary reviewing it and
may ask the stenographer to photocopy the entire file and attach it to
the deposition. Where a witness anticipates that parts of your file will
be used as exhibits or will be copied by the opposing attorney, he or
she may wish to make photocopies beforehand. The attorneys normally
accept such copies if they came directly from the deponent's files. By
carrying these copies into the deposition, it may be possible to carry
all of the files back out instead of having to wait days or weeks while
the stenographer copies them.
Since files are discoverable during
the deposition, it is a good practice for a witness not to be deposed in
his or her office. Otherwise, personal files and agency records might be
subject to a time-consuming review. The point is not to hide this
information. Indeed, the other attorney is entitled to any germane
information, but only if he or she asks the correct and specific
question in order to find it.
Most of us experience some measure of
uncertainty or fear when we approach an unknown situation. This is
especially true in the legal arena which is fraught with Latin phrases,
concepts that are difficult to grasp, the threat of adverse publicity
and the possibility of huge financial losses.
Overcoming fear and intimidation is
not always easy, but it is always necessary to become an effective
witness. The first part of overcoming fear is recognizing the physical
aspects. The human body attempts to work harder and run faster through
the secretion of adrenalin. This adrenalin often surfaces as excess
energy immediately before a big event such as giving a deposition or
testifying in court. Recognizing the cause of the nervous energy and
finding a harmless physical action to burn off the energy may relieve
A second major tactic to overcome fear
lies in completeness of preparation. A witness that discussed the case
with his or her attorney, practiced answering questions, identified the
key issues and reviewed the materials necessary to testify can answer
questions authoritatively and confidently. Preparation for testifying
might be compared to studying to take a test. If the student identifies
the correct material for the test and studies it thoroughly, the test
will be relatively easy.
A third major point that will help
alleviate fear is for the witness to carefully identify his or her role.
The witness's foremost duty during the deposition is to answer questions
truthfully. A defense attorney once placed the issue in perspective when
he stated to a nervous witness, "Your testimony will not win this
case. Your testimony will not lose this case. My job is to win or lose.
Your job is to state the truthful answer to questions." Do not try
to be more important than you really are. Do not try to win the case by
yourself. Let the attorney do the worrying about the loss and the
gloating over the victory. Your job is to give facts.
The witness must remember that this
will be an adversarial proceeding and that depositions are rarely
enjoyable. The opposing attorney will most likely be intelligent and
highly trained in methods to discredit or discomfort witnesses, to dig
for information and to otherwise pursue the quest for truth. Witnesses
whose ego cannot withstand a challenge may soon find themselves trapped
in a sea of their own words. Witnesses may expect challenge,
intimidation and frustration from the proceedings; however, the most
successful witnesses continually focus on one main point: that their job
is to concentrate upon the attorney's questions and to constantly tell
the truth in response.
Good Witness is a Good Communicator
Communicating with the opposing
attorney, the judge or the jury is the most fundamental component of
being a good witness. Witnesses who practice communicative skills
(especially listening) usually improve as they learn more about the
legal system and about giving testimony. See if your attorneys' firm has
prepared written materials to guide witnesses in giving testimony and
read them. Good articles have also appeared in professional literature.
Risk management seminars and training materials prepared for agencies
may also include materials on legal issues and hints for giving
For Giving Testimony
Where an employee anticipates giving
testimony several times in the future, it may be helpful to obtain
publications on the subject and to start a file of articles from
professional magazines. The tips for witnesses shown below are
illustrative of the information available from such references.
(1) Tell the truth to every question.
There is no substitute. If the opposing attorney or the jury ever doubts
that you have told the truth, the remainder of your testimony will be
(2) Pause before you answer. This
gives you time to think, and your attorney time to object if the
question is not reasonable. It is easy for a witness to anticipate the
answer to a question and to try to respond before the attorney finishes
speaking. Guard against rapid answers.
(3) Do not volunteer information. Make
the attorney ask a specific and correct question to get the information
he desires. During a deposition, a professional was asked whether he had
designed a certain roadway feature. His response was, "No, Joe
Burns designed that when he was in the Third District office, but Joe is
dead now so Jim Green handles that kind of work." Later, the
professional's attorney pointed out that Joe Burns had given six pieces
of information when the answer to the question should have been
"No." The opposing attorney is entitled to any piece of
evidence, but one of the best defenses is to make the attorney work to
find the information. Do not voluntarily give it to him or her.
(4) Give simple, brief answers to
(5) Speak distinctly, in relatively
short sentences. Many a witness has been shocked to discover that the
transcript of his or her testimony was full of long, rambling phrases
and sentences which lead in great circles. Whenever possible, use short,
distinct phrases. Where necessary, these answers may be modified with
qualifying answers. For example, "Normally speaking, the answer to
that question is yes; however, in this instance...."
(6) Do not guess at answers. If you
cannot remember or do not know the correct answer, state so. "I do
not know", is often the very best answer. A witness who tries to
extend testimony beyond the scope of his or her education, experience
and background is preparing for the inevitable fall. Remember that
attorneys are experts in exposing flaws in your testimony. Anything you
say without being on a solid foundation may be the first step toward
(7) If you make a mistake, admit it
and correct it. Do not attempt to cleverly cover up your mistake, as you
will probably set a trap for yourself.
(8) Look directly at the attorney
asking you the question and concentrate upon hearing and understanding
the entire question.
(9) Do not look at your own attorney
before answering unless your attorney has objected to the question. You
will give the impression that you are unsure of your answer, or that
your attorney is prompting you.
(10) Your attorney will sometimes
object to a question which you have been asked. If you do not understand
the objection or if you are confused, ask the attorney whether you
should answer the original question. Your attorney may advise you to
answer, to answer if you understood the question, or to state that you
will not answer on advice of your counsel. This latter answer may lead
to a heated discussion between the attorneys. If so, stay out of the
discussion and let them work it out. It may even be amusing if you are
able to watch it as a disinterested third party.
(11) If you are answering a question
but are interrupted by the opposing attorney, state that you did not
finish your answer.
(12) Depositions are often fishing
trips for attorneys. They are attempting to offer bait, test the waters,
and see what they might catch. They are attempting to discover some new
information to improve their cases. Broad, very general questions
without specific facts typify a fisherman trolling for a catch. Turn
these questions aside by asking the attorney to be more specific, or by
stating, "That is a very broad question. Our agency probably has
hundreds of different documents like that. Which document do you wish to
have me discuss?". In my last deposition I counted ten times when
the attorney was trying to fish out more information than I was willing
(13) Attorneys sometimes ask leading
questions by making a statement and asking you whether you agreed. If
any part of their statement is not correct, you may state that you do
not agree, or you may qualify your answer by stating that you agree with
part of the statement.
(14) Do not hesitate to disagree with
leading questions from the other attorney. If you are asked a question
which suggests an answer with which you disagree, simply disagree with
the question. Don't explain your answer. Make the attorney ask you
another question if he or she wants more information on the subject.
(16) Attorneys frequently ask the same
question several times or ask the same question several ways. You may
choose to respond with, "I believe that I have answered that
(17) Do not memorize your testimony.
If the exact date, distance or time is important to the opposing
attorney and you cannot state it with certainty, simply say, "I
cannot remember." If the attorney keeps pressing for an answer, you
may wish to reply, "The date is contained on the accident
report", or "The distance can be found on the department's
(18) Do not respond to challenges to
your character, your family heritage or your comments. Leave your ego at
home and keep your temper. An opposing attorney who can draw you into an
argument or that can make you produce a quick answer has won the day.
(19) The courtroom is no place for
humor. Do not try to give sarcastic, trite or flippant answers to
questions. I did get away once with the statement "Do you want the
truth, or only the yes or no you demanded". It can lead to very
damaging times if you are not careful though.
(20) Do not depend upon technical
vernacular. Stay away from acronyms. State your answer in clear, simple
terms that can be understood by anyone.
(21) Where distances and measurements
are part of the testimony, use easily understood units of measurements.
A witness whose language is encumbered with ergs, foot-pounds, or deltas
will not communicate to a jury.
(22) Be careful in estimating time,
speed and distance. If you are not certain of the values, qualify your
answer by saying, "My estimate is . ."
(23) A novice who has never testified
will find it helpful to visit an on-going trial to watch witnesses
testify under direct and cross-examination. This will produce a much
better understanding of the process than watching the distorted version
often used in TV drama shows. While there are differences in courtroom
and deposition testimony, the witness may obtain a good feeling for the
process through courtroom observation.
After the deposition has been
completed, the witness still has work to do. It is important to meet
later with his or her attorney to review the deposition and to receive
constructive criticism on the techniques used in testifying. The witness
and the attorney should jointly determine whether the deposition has
helped or hurt the case and whether new information was introduced
during the deposition.
The witness should obtain a copy of
the deposition as soon as it is available. The deposition should be
studied for errors and misstatements. The attorney may be able to assist
in determining which of the errors need correcting and which are
inconsequential. Changes should not be made casually, since they almost
invariably provide a fruitful source of questions for the opposing
attorney to use during cross-examination at the later trial (to the
embarrassment of the witness). It is very important for the deponent to
get it right the first time to avoid changes in the transcript. After
the review and any necessary changes, the witness signs and returns the
deposition. The attorneys through a written stipulation often waive this
signing of the deposition.
Regardless of whether the deposition
is signed, the witness should obtain a copy and review it for statements
of fact and to improve future testimony. Additionally, if the case goes
to trial, the witness should review the deposition intensively to ensure
that testimony in court will agree with testimony given in the
Professionals may be tempted to view
legal proceedings as nothing more than distasteful problems. They need
to realize that these problems will not go away and that they can not be
ignored. The solution lies in learning more about the legal system and
how to be aggressive in defending these cases.
Find out everything you can about the
Practice with your attorney sample
questions and answers.
Keep calm and realize all the factors
which are going on...remember the jousts of old!
And - GOOD LUCK
stomach turning that occurs when you have to give a deposition and that
"John" experienced in the scenario at the beginning of the
course can be eliminated by:
Exam: Giving a Deposition
Who is aware of all the witnesses to be called?
The opposing attorney
All the above
Who knows what you are going to say in trial?
The opposing attorney
All the above
Who is usually present at a deposition of a witness?
All of the above
What is the definition of a deposition?
The sworn testimony of a witness
The interrogation of a criminal suspect
The written account of an interrogation
None of the above
What do you generally bring to the deposition?
Your hat and coat
All of your office files
Selected books, papers, documents or other tangible things, which are
pertinent to the case, or which you have relied upon in taking actions
or drawing conclusions.
None of the above
What is the most dangerous part of the deposition?
It will be taken as fact.
It may be used for the purpose of contradicting or impeaching your
It cannot be used in court.
It will be thrown out.
If there is such a thing as a secret to giving a deposition, what is
Total and complete preparation. Lack of preparation is not an excuse for
a crisis but it may well cause one.
Look the judge in the eye.
Bring all of your files.
None of the above.
Upon receiving notice that your deposition is to be taken, what should
your first action be?
Shred all of your files.
Telephone your attorney.
Telephone the attorney who sent it to you.
Telephone the plaintiff and try to fix the problem.
What might the next action you take be in some circumstances?
Transfer all of your assets to your wife's name.
Do nothing, your attorney may want you to not divulge anything, thus if
you know nothing, you can't.
Shred all of your files.
What is one of the best ways to prepare for the deposition?
Look in a mirror.
Worry about what the opposing attorney has.
Practice answering questions given by your attorney.
Shop for new clothes to wear.