How to survive a deposition.

“I am not struck so much by the diversity of testimony as by the many-sidedness of truth.” Stanley Baldwin

What the heck is a deposition? A deposition is your testimony under oath. Opposing counsel will ask you questions. A court reporter records the proceedings and all questions and answers. The judge will not be present. Usually, the deposition is taken in one of the attorneys’ offices or at the court reporter’s office. There is little difference between the testimony at a deposition and the testimony in the courtroom except that a judge does not preside at a deposition and rule over the matters as they arise.

The opposing side is taking your deposition for three main reasons. First, they want to discover what facts you have in your actual knowledge and pos­session about the issues in the case. In other words, they want to know what your story is and what it will be at the time of the final hearing. Second, they want to pin you down to a specific story. This way you will have to tell the same story at the final hearing. Through a deposition, they will know in advance what your story is going to be. Finally, they hope to catch you in a lie to show at the final hearing that you are not a truthful person. This will cast doubt on your testimony, particularly the crucial and contested points. These are very legitimate purposes and the opposing side has every right to take your deposition. Correspondingly, you have the same right to take depositions of the opposing party and all witnesses.

Notably, a skilled attorney will not do what I call the “Perry Mason” routine –in other words, there will not be a “gotcha” moment during your deposition. A smart attorney will save that until you are in front of the judge — when it actually makes a difference. Rather, he or she will simply lay the foundation by getting you to admit facts or make statements that can later be used to discredit you at trial.

As with many things, preparation is the key to giving a good deposition. Knowing your story backwards and forwards is critical to being able to answer questions competently. But, perhaps more importantly, honesty is the best policy. Being caught in a lie about something damaging to your case is far worse than simply admitting the damaging facts in the first place. Tell your story as it really happened –warts and all. Nobody has a perfect case. It is your attorney’s job to present your facts to the court in the best possible light.

But being honest does not necessarily mean volunteering information. Always remember that, either as a litigant or a witness, your only purpose is to give the facts as you know them. You must give the facts if asked. You do not, however, have to give opinions. Never state facts that you do not know. Quite frequently the deposing attorney will ask a question and, even though you feel you should know the answer, you do not. Don’t guess! This is not an I.Q. test. Often the correct answer is “I don’t know” or I don’t recall “. A guess or an estimate of an answer is usually the wrong answer and the opponent can use the guess to show that you either do not know what you are talking about or imply that you are deliberately not stating the truth.

Never attempt to explain or justify your answer. You are there to give the facts as you know them and not to apologize or attempt to justify those facts. Any attempt at such would make it appear as if you doubt the accuracy or authenticity of your testimony. And do not try to argue your case with the opposing attorney. Save your explanations for court.

Do not let the opposing attorney get you angry or excited. This destroys the effect of your testimony and you may say things that may be to your disadvantage later. It is sometimes the intent of attorneys to get a deponent excited during the testimony. Deponents may say things that the other side could use against them later. Give only the information you have. Respond to questions in the same tone of voice and manner that you would in answering your own attorney’s questions. The mere fact that you get emotional about certain matters could be to your opponent’s advantage in the case.

You should take your time in answering questions when necessary. Remember, the transcript of your deposition does not show the length of time used in considering your answer. However, it is advisable to answer all questions in a direct and straightforward manner.

Tell the truth. The truth during a deposition or on the witness stand will never really hurt a litigant. Do not try to figure out beforehand whether or not a truthful answer will help or hinder your case. Answer truthfully. Your attorney may explain away the truth, but he cannot explain lies or concealment of the truth.

Do not volunteer any facts that are not specifically requested by a question. Think of the deposition as if you are on the witness stand. Don’t volunteer; do not elaborate. You can answer questions with “yes,” “no,” “I don’t know,” or, if appropriate, “I don’t remember.” Answer yes or no, if possible

Make sure that your answers are audible and that you answer “yes” or “no” rather than “uh-huh” or nodding your head. Remember that what you say is being transcribed by the court reporter; non-verbal answers will not appear on the record or may be misinterpreted.

Your attorney may object to certain questions but, unless you are instructed otherwise, you must still answer the question asked. You can consult with your attorney or take a break at any time but if a question is pending, you must answer the question first.

Depositions can most certainly be stressful and frightening. However, keep things in perspective and you will be fine. Relax. Listen to the questions. Answer them truthfully. Simple.

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How to survive a deposition.