What is a deposition?
In most cases, a deposition is a legal proceeding outside of the courthouse in which testimony is taken. Testimony in this legal proceeding is under oath, just as though you were testifying in court. That means you are subject to the penalties of perjury – unlike normal everyday conversations. Although there is no judge present, many judges will make themselves available by phone on short notice to address evidentiary or procedural matters. Usually, the deposition will be taken in the office of one of the attorneys in the case. The official court reporter will take down all that is said. Without a court reporter or sworn testimony, it is not a deposition.
How should I prepare for a deposition?
Review any documents that may be relevant. Get a good night’s sleep. Make yourself available for a pre-deposition meeting in the days or weeks before to prepare yourself. Dress in a professional attire, but not so overdressed that you are uncomfortable. Review your subpoena with an attorney who represents you.
What general tips should be kept in mind?
1. Tell the truth. Not telling the truth can seriously damage or destroy your case. It can lead to prosecution for perjury. Be absolutely truthful and true to yourself. Use the “give and take” technique: admit as much of the question as you can, then point out the areas that you cannot honestly answer because you may not know. If you realize that you may have made a mistake in your testimony, ask to take a break and let your attorney know before the deposition ends. Your attorney will make sure you have an opportunity to clear up the mistake.
2. Know what you know and what you don’t. Just because you are under oath does not mean that you suddenly know things that you did not know before or that you are obligated to answer questions outside of your personal knowledge. If you don’t know something, simply say you don’t know. Do not feel that because you cannot honestly answer a question that you are somehow going to be thought of as foolish or stupid. Most people do not know as much as they think they know. There are many reasons why you may not know something. It may never have been something that you were attentive to – or may have been something that you attended to and have since forgotten. It may be something you never knew or simply can’t bring to mind. Testifying about things you don’t know will not make you look more knowledgeable. In fact, it will undermine your testimony about the things you do know and damage your credibility. A person who acts like a “know-it-all” is not necessarily more credible; such a person may simply be perceived as someone who doesn’t have enough confidence to say “I don’t know.” A person who tries to answer everything, including things they don’t know, is like a baseball outfielder who tries to catch every ball and field every play. Know your position. Let other witnesses answer questions in their areas of knowledge. Do not guess. Do not be a “know-it-all.”
3. Try to stay in your “safe harbor.” A safe harbor is the area where you have privileged access to knowledge, sensation and memory. If someone asks you whether you have a headache or not and you say that you do, it would seem weird and absurd for someone to contradict you and say, “You don’t have a headache.” The reason: you are in your “safe harbor,” a place of privileged access where you alone can go. You alone know your present sense impressions, level of pain, personal history, and things that you perceived and your memory of them. If you are testifying as to what you recall, no one can disagree with your recollection. You may remember incorrectly or forget things, but your recollection is known to you alone. When testifying about things in the past, you are always testifying “to the best of your recollection.”
4. Try to know how well you know something and make distinctions where appropriate. There is a whole spectrum of certainty. I sometimes call this the seven levels of certitude, ranging from absolute certainty to complete ignorance.
Consider the following:
I am absolutely certain. There is no doubt.
I am quite certain or almost positive
I believe so.
I think that is probably so.
I think it likely, but cannot be sure.
I cannot be sure.
I simply do not know.
There are other levels, of course, but you can readily see that answers need not be “Yes” or “No.” Some questions simply cannot be honestly answered “Yes” or “No.” There are an equal number of levels of ignorance ranging from having once known something, but having it slip your mind, to having forgotten, to having never known. [Generally, I don’t know = I have never known, while I don’t remember = I probably did know at one time, but do not recall right now.] Do not be afraid to answer a question with “Yes” or “No” if you can do so accurately. But if there is doubt, then that just shows you are a thoughtful person who knows what you know – and gives you greater credibility when you are positive about something.
5. Timing. Take your time, think about the answers before giving them. Let the questioning attorney finish the question – pause with a breath – think – then speak. Do not confuse the deposition with a conversation, just because both involve speaking. Think of a deposition question as an e-mail which you must receive, open, read, think about, draft and revise a response, and then press “SEND.” When you press “SEND” is when you START to answer in the deposition. Do not think out loud. No points are given for answering quickly. In fact, answering quickly may simply leave more time for you to be asked more questions. Control over the timing is a real confidence-builder for you as a witness and has the added benefit of giving your attorney time to object. If your attorney does object, wait until you are instructed to proceed with your answer. Some objections may lead to an instruction for you not to answer or may lead to the question being reformulated. Wait until you know what you are supposed to answer. If this timing leads to you “losing” your train of thought, simply ask for the question to be asked again, do not keep talking in the hope that the question will “come back” to you.
6. Listen to the questions and only answer what is being asked. Be in the moment. Do not anticipate the next question or worry about how the answer might look. That will be confusing and lead to you acting defensive or “cagey.” Just look at the question before you and answer it plainly and honestly. It is not your job to argue with counsel or to make all facts in the case point in one direction. The jury will sort out the inferences. As a witness, your job is to answer forthrightly, without ulterior motive or guile. If you are asked a question, for instance “What did you have for breakfast?” answer that question. Do not comment on what you usually have, whether the breakfast was to your liking, who you ate with, where you ate, what your diet is or should be, or any one of a myriad of questions that are “related” in your mind. The answer: “Two eggs.” Asked where you live, means to give your address, not to describe your residence, how long you lived there, who else lives there, how you like living there, where you lived before, or whether you are planning to move away in the near future. Think of answering as though you were playing “Twenty Questions.” Be truthful, but do not expand upon your response. As a corollary of the above rule: Once you are finished with answering a question, if the answer is complete and truthful, remain quiet and do not expand or embellish it.
7. Be comfortable with silence. Silence is your friend. Silence means that you can remain in a posture of relaxed attentiveness. There is nothing for you to do. You should not feel obligated to “break the ice” or “fill in the silence” with additional facts. Many a case have been damaged by a witness who, uncomfortable with silence, added more testimony that had not even been asked.
8. Do not try to answer a question you do not understand or have forgotten. It often occurs that a question is unclear and hard to understand. A lawyer may have stopped, rephrased, corrected, and restarted a question, only to leave the witness unclear what question is being asked or even how many are being asked. Only answer one question at a time. If the question is unclear or is “compound” or “complex” such that you are not sure if you are answering one or more questions, STOP. Clarify the question. Make sure that you understand the time frame and subject matter of the question. Do not be too embarrassed to simply say: “I’m sorry, I didn’t follow your question” or even “I was trying to listen to your question carefully, but I’m afraid I’ve forgotten what it is. Would you be kind enough to restate it for me?” Or, even, “Can you rephrase that with different words? I’m getting mixed up.” If you do not understand a question, simply say so. “I’m sorry, I’m not understanding the question.”
9. Do not “close the door” on yourself. If you are asked whether “that is all that happened” or whether “you have told us everything you know,” do not agree with a simple “Yes.” Instead, have the humility to allow for the possibility that you may have overlooked something or forgotten something. “Have you listed all the symptoms/problems/conversations you had?” Say: “I have answered the questions you have put to me as best as I can to the best of my recollection and belief.” Or, say this: “We have been in this deposition for several hours now, so all I can say is that as I am sitting here now, I cannot recall anything to add to my previous answers.” Or more simply: “That’s all I can think of at the moment, but I can’t be positive I haven’t overlooked something.” All of these answers are preferable to simply saying, with finality: “That’s it.”
10. Maintain the correct attitude and demeanor. Be polite, but not servile. Do not argue with the questioner. Disregard the attitude of the questioning attorney. Think of it as “information” presented in verbal form. Breathe. Do not try to answer quickly just because the questioner asks the question quickly. Do not raise your voice just because the questioner raises his or her voice. Do not “rise to the bait.” Do not be sensitive to tone or non-questions or respond to remarks that are not questions. Do not engage in banter or joking. Do not use sarcasm as this cannot be well understood once transcribed and because it is often based on using tone to say the opposite of the words, it can be very damaging to your case. Be self-contained. Do not use obscenity or say anything that could be construed as derogatory or as a discriminatory remark or ethnic slur. Listen to the questions in a respectful manner. Wait until the question has been completed and then answer in a even-handed, thoughtful manner.
Concluding Thoughts. Make sure you have allowed enough time for your deposition. If you can, clear your calendar for the period of time required to complete your testimony. You are welcome to confer with your counsel at any time – so long as there is not a question pending. You are free to ask to take a break. If you find yourself needing water or a restroom break, speak up immediately. You are not required to undergo any discomfort. It is best that your testimony not be hurried or distracted by discomfort. If you feel ill, immediately let it be known and every accommodation will be afforded you.
Keep the above thoughts in mind and you will find your deposition to be a straightforward and comfortable experience.
As a witness, whether in your own case or that of another, your truthful testimony is vital to the system of justice. Your deposition testimony under subpoena – or otherwise – is a civic duty. You should take pride in the quality of your testimony and your ability to speak the truth to the best of your ability.
© 2013 LAW OFFICES OF RANDOLPH I. GORDON PLLC