How to be a Good Deposition Witness: 15 Tips on Testifying
A deposition is a formal, pre-trial oral testimony taken through the asking and answering of questions. It is common to be called on to give testimony in the form of a deposition when you bring a lawsuit for personal injury , wrongful death or otherwise. Our firm represents clients being deposed weekly.
Before giving a deposition, you should be adequately prepared and meet with your attorney. You will want to review applicable law enforcement reports, prior statements, photographs, and other information about your case. The purpose of a deposition is to provide information, but be certain to only provide answers to the non-objectionable questions asked.
If you are ever called on to give your deposition, here are 15 tips to ensure a favorable testimony that will help your case:
1. Listen to the question and only answer the question that is asked. Don’t volunteer information to the opposing side’s counsel. Their job is to seek the information they need. I joke with clients if asked what time it is, don’t tell us how to make a Rolex watch. The more information you give, the better the chance you will give the opponent information that may help them and harm your case. Brief and concise answers are best.
2. If you don’t know the answer, “I don’t know” is a perfectly good answer. Don’t guess, speculate, or play a hunch. A deposition is sworn testimony; only say what you know to be true. On the other hand, don’t use this tip to avoid giving testimony that you know.
3. If you don’t understand a question, ask for the questioner to rephrase it. If you give an answer, it is presumed you understood the question. Asking the other side to rephrase the question is best.
4. Don’t interrupt the question. Allow the attorney to finish the question completely before giving an answer. Take your time before answering, think through the answer thoroughly, and give a level response.
5. Don’t use nods of head, “uh-huhs,” or “uh-uhs “. Testimony should be crystal clear so when the transcript is read the answer is obvious. Although we use these forms of communication in everyday conversation, a deposition is more formal and all answers should be obvious.
6. Beware of compound questions. Double question are confusing and your attorney should object. For example, if the question posed is, “Isn’t it true the traffic light in your direction was yellow and you never struck your brakes?” you would refrain from answering because it is an objectionable compound question. The questioner is required by law to re-ask in two separate questions to get the information sought.
7. Listen to your attorney. You cannot confer with your attorney before you give an answer. Your attorney, however, may object to a question and in her objection, she may be attempting to provide information in an attempt to assist you before you are required to answer the question
a. EX: If your attorney objects to a question, with the reason that the question would require you to speculate, you would know not to speculate when giving your answer. You would answer “I don’t know.”
8. If a question pertains to an existing document, don’t be afraid to ask to review that document. A witness is allowed to review referenced documents before giving an answer during a deposition. The document may help to refresh your memory.
9. Don’t get boxed in on issues pertaining to time, distance, and speed. In other words, be clear if giving an estimate and don’t allow the other side to force you to choose an answer you are not sure is correct.
a. EX: If asked, “How fast were you travelling at the time of collision?” and you are unsure of your exact speed, it is ok to answer “I’m not certain” and then to give a range of speed if you are comfortable. If the questioner presses and asks “Would you say between 40 and 45 mph?” do not allow them to restrict your answer to between those speeds if you are not absolutely sure.
10. Explain your answer if required . Lawyers like to ask questions that can easily be answered by simply a “yes” or “no.” As a witness, you are entitled to answer “yes” or “no” but then can explain your answer where an explanation is required to be clear.
11. Don’t use words like “never” or “always . ” Such phrases are too definite and may lead to questioning of your credibility if the claims they support can be proven false.
12. Don’t be afraid to circle back . During a deposition, if an answer comes to you as to a question asked earlier, you are perfectly entitled to go back to the previous question and provide an answer during the deposition. For example, you can say “Do you remember when you asked me earlier about the date I was married but I couldn’t remember? Well, now I recall that it was August 15, 1987.” If the answer doesn’t return to you until after the deposition, you may provide the answer to the question through counsel.
13. Stay calm and collected. The opposing counsel may ask questions that seem irrelevant or silly. A witness is best served by staying calm and giving honest, thoughtful responses to all questions. If you get uncomfortable about an area of questions or uncertain about how you should answer, you have a right to take a break. During the break, talk to your counsel about the issues or how best to present your testimony.
14. Communications between you and your attorney are privileged. What you and your attorney discuss is off-limits. Do not answer any question asking for this type of information. Allow your attorney to object when such questions are asked.
15. Always tell the truth. Nothing ruins a case faster than exaggerating, misrepresenting, or otherwise telling an untruth. Perjury, giving false testimony, is not only a crime but it will destroy your case.
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