Although having your deposition taken may not be anyone's favorite experience, there are several tips that can make you a more effective witness and make your deposition experience less stressful.
THINGS TO DO:
Prepare: Before you begin your deposition preparations, obtain advice from your attorney about the documents you should review and the steps you should take to refresh your recollection about the facts.
Tell the Truth: Telling the truth is the right thing to do, the easiest thing to remember, and the easiest thing to recite consistently.
Testify ONLY to Known Facts: An important distinction exists between what you "believe" happened and what you "know" happened. Known facts are based on what you have perceived with one or more of your five senses. Answers containing phrases such as "I think," "I guess" or "I believe," reveal you are guessing, speculating or making assumptions.
Listen to the Question: Listen carefully to the question. Ask for clarification if the question is unclear. Refrain from accepting an attorney's rephrasing of your prior answer unless you agree with every word of the new question posed.
Before answering questions about a document, make sure you have been given the entire document and take time to read the entire document, at a pace that is comfortable for you.
Remember that "I don't know" and "I don't remember" have different meanings. "I don't know" means you do not now know and never knew the answer to the question. "I don't remember" or "I don't recall" means you once knew the answer to the question but are currently unable to recall the answer.
If you cannot fairly answer a leading question "yes" or "no," ask for clarification or take the initiative by answering, for example, "I cannot answer the question with 'yes' or 'no,'" or "With the way you phrased that question, my answer is 'yes.'"
Sometimes lawyers shift between different times, places, documents or subjects, trying to create confusion. Ask for clarification about any uncertainties related to time, place or subjects.
Listen to the Objections: Your attorney may object that a question invades the attorney-client privilege or some other statutory or common law privilege (e.g., doctor-patient privilege, spousal privilege), and may instruct you not to answer. You should heed such instructions.
For objections that do not relate to privileges, such as objections to the form of the question, you will be required to answer despite the objection. Make sure you understand the question before answering.
Be Patient: Slow down. Take a moment after each question to digest the question and think about your answer. A brief pause between the question and the answer also allows time for your attorney to make objections.
Give Verbal Responses: Speak clearly and give verbal answers. Court reporters accurately cannot record nods of the head and may misinterpret an affirmative "uh-huh" for a negative "uh-uh." Court reporters also cannot record the intended meaning when a witness points or gestures instead of providing a verbal answer. "About this big," for example, cannot be accurately recorded.
Be Polite: Politeness projects the confidence and professionalism that demonstrate credibility. You should remain polite and courteous even if others around you do not.
THINGS NOT TO DO:
Don't Volunteer Information! Never volunteer information when being questioned by the other side's attorney. Your attorney will have the chance to ask you any necessary follow-up questions later.
Don't Guess! Refrain from guessing or speculating about facts. If a lawyer pressures you to guess, simply respond, "I would not presume to guess."
Words to Avoid: Avoid absolute words such as "always" and "never," because every rule has an exception that may be used to discredit your answer. Use less absolute terms such as "typically" or "rarely." Avoid ambiguous words such as "few" or "many," as they may be misinterpreted to mean something different than you intend. Use more precise words or "bookend" your answer by giving a range (for example, "between ten and twenty") within which your truthful answer fits. Avoid words or phrases such as "honestly," "truthfully" or "if you want to know the truth," as they may erroneously imply that your answers which do not begin with these phrases are less than truthful.
Avoid Humor, Anger and Sarcasm: Avoid humor and sarcasm because they can easily be misinterpreted to mean the opposite of what you intended. Avoid anger because it is usually misinterpreted as something else and almost always clouds your ability to perceive the content of the question and recall the information necessary to answer truthfully.
Don't Be Evasive: Resist the temptation to evade uncomfortable questions. Instead, pause, think, take a deep breath and then answer the question honestly. Your attorney will have the opportunity, later, to ask follow-up questions.
Be aware of attorney tactics: Don't allow lawyer tactics, such as reminders that you are under oath, to cause you to change or qualify truthful answers. Answer the same question the same way as many times as necessary. Don't be fooled by an opposing attorney who claims to lack knowledge about the subject matter of the case or tries to come across as your best friend. Rest assured, the opposing attorney knows the case and is not your friend. Some lawyers use a pregnant pause at the end of your answer, or a silent stare, to convey the message that they expect you to say more. Don't break an uncomfortable silence by unnecessarily volunteering extraneous information.
If you have any questions about the issues discussed in this article, please contact the author, Colleen Rea, a partner in our Denver office, at firstname.lastname@example.org or 303-592-8863 or the Ford & Harrison attorney with whom you usually work. •