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Testifying at a Deposition

Many people experience a lot of stress prior to giving a deposition, especially for the first time. With few exceptions, however, depositions are usually more like a very careful, precise conversation than the browbeating affairs one often sees on television. If you pay attention to a few details — and listen carefully to your attorney when he or she prepares you to testify — the deposition process can be quite easy.

First, while you should not stress over an upcoming deposition, you should take it seriously. Depositions function just like trial testimony. Failing to answer truthfully — or answering a question that was not asked — can cause serious problems for your attorney in making a case on your behalf. Don't volunteer additional information, but answer questions fairly and with intellectual honesty. Also, remember that perjury is a felony.

On the other hand, don't ever guess as to the answer to a question. You are in the deposition to give facts as known to you, not to try to figure out what might have happened. Even if it makes you feel dumb to say it, sometimes "I don't know" is the right answer.

Keep your answers serious. While the attorneys may joke around prior to the deposition, once the oath has been administered everything you say will be taken at face value. Even though opposing counsel may try to put you at ease, giving a joking or semi-serious answer can have repercussions later. First, and most obviously, not everyone has the same sense of humor; what is funny to you — and maybe even funny to those in the room — may not be as funny to a judge or jury member. Second, your words are taken down by a court reporter to be read later. The court reporter does not take down facial expressions, gestures, or tones of voice. Much of the context of what you say — such as tone of voice or facial expressions — will be lost to those who read your testimony later.

Pay strict and guarded attention to the questions being asked; don't get distracted. If your attention wanders, you could make mistakes or misunderstand. If you feel like you don't understand a question, make sure you ask for clarification. If a question is vague or compound ("Did you go to the store and who did you see and what did you say to them?") or assumes something that isn't true, you have the right to have the question restated or rephrased.

If at any time during a deposition you feel like you need a break, ask for one. Depositions can take hours, and most attorneys have no problem with granting breaks as needed. However, if you have a medical condition that may cause a need for frequent breaks during the deposition, it is polite to inform opposing counsel at the outset, so he or she will be prepared for the frequent interruptions.

Don't take any drugs or alcohol before you testify. This may seem obvious, but remember that "drugs" can also include things like cold medicine, or even more caffeine than you are used to. You should also be careful what you eat before you testify.

When preparing for the deposition, be honest and forthcoming with your attorney. Even if it certain facts may embarrassing — even if events make you look like an idiot or a crook — it is better that your attorney knows everything even potentially relevant to your case. Giving your attorney insufficient information is like hiring a chauffeur and not telling him or her that your brakes don't work.

Also, try to make yourself available to your attorney for discussions prior to the deposition. This may also include setting aside some time to work on written discovery and, later, trial preparation. It is not a waste of your time if it helps you to win the lawsuit.

When your attorney prepares you for the deposition, he or she will likely give you some advice on how to behave before, during and after your testimony is taken. While this may seem minor, follow your attorney's advice. Don't be afraid to ask him or her if something is appropriate. It's one of the things that you are paying your lawyer for. Your attorney will tell you what he or she wants from you if you are deposed or have to take the stand in a trial.

Dress as well as you comfortably can, especially if the deposition is recorded on video. A suit is best, for a man or a woman, but if you do not wear suits, slacks and a dress shirt or blouse will suffice. If you are a police officer, military personnel, or cleric, your uniform is always appropriate. While this is not as important as at trial, your credibility as a witness is in some small degree judged by your clothing.

Finally, before you give your deposition testimony, be sure to hand over to your attorney everything relevant in your business or personal files, even if it is embarrassing or incriminating. If you have the document, the odds are that someone else does too.

Don't help. It is human nature to want to explain things so that your listener understands. Resist the impulse. It is your opponent's job to get the answers. It is your job to answer only the question asked, and not help.

Preparing to Meet With Your Attorney

To read and print out a copy of the checklist, please follow the link below.

Preparing to Meet With Your Attorney

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