The following description of procedures and suggestions for your conduct are general in nature and are presented to help you prepare for your deposition. There can be exceptions to these general rules, and reasons why these rules do not apply to your specific situation. Your lawyer should be the final authority on your conduct or testimony during the deposition.
Be Honest. — Your first obligation as a witness at a deposition is to answer questions truthfully and accurately.
When to Respond. — As a general rule, a witness must answer all questions, unless one of the lawyers present at the deposition directs the witness not to answer. In the event that a lawyer objects to a question during your deposition, you should refrain from answering. If the examining lawyer then directs you to answer the question, you should do so unless directed by your lawyer not to do so.
Be Sure You Understand the Question. — If you do not completely understand a question, do not try to respond based on what you think the question might or should be. Instead, simply say to the examining lawyer that you do not understand the question. You are under no obligation to interpret an imprecise or unclear question; it is the examining lawyer’s job to ask questions clearly.
Look for Double Meanings. — Be especially alert to questions which include terms with more than one meaning. If a question contains a term which is not perfectly clear to you, state that the intended meaning of the term in the question is not clear to you. Also, be careful when long, complex, or double questions are posed to you.
Wait Until the Question Is Completed. — Do not begin to respond until the examining lawyer has completed the question and is silent. Even if you feel that you know what information the lawyer is requesting, you run the risk of misinterpretation by breaking into the middle of the question.
Carefully Consider Your Answers. — Before responding to a question, consider carefully what you intend to say and have your answer clearly in mind. Even if you are completely certain of your answer, hesitate for a few moments. This will permit lawyers to object to the question if it is improper and to instruct you not to answer.
Don’t be concerned if your deliberations slow the pace of the deposition or involve periods of silence between the questions and the answers. At a deposition, there is no judge or jury to note how long you take to answer, nor is there any record in the deposition transcript which indicates the amount of time it takes you to respond.
Answer the Questions Asked. — When giving your testimony, answer only the question put to you. While it is important that you give complete answers to questions, you should give just the response which is sufficient to answer the question and no more. If you are asked a question which can be answered “yes” or “no,” then do so.
It is not your job to educate or to inform the examining lawyer; it is his or her job to determine carefully and precisely the matters about which to inquire, and to ask question to elicit that information.
If You Are Uncertain. — Be careful to testify only as to those matters within your personal memory or knowledge. If you did not personally witness or observe that about which you are asked, then you are justified in saying you do not know the answer, even though you may have heard second hand facts or information. For example, if you are asked why a certain decision was made but you did not participate in making that decision, you should say that you do not know why the decision was made.
Similarly, do not speculate as to what “probably” happened; there is always a possibility that at a later time you may remember what actually did happen, and it may differ from your deposition testimony. Your deposition testimony should rest upon firsthand knowledge and a clear memory, not upon hearsay or speculation.
Be Alert to “Factual Assumptions.” — You may be asked questions containing factual assumptions which you believe to be inaccurate or about which you have no knowledge. For example, the question “When Mr. Smith made the decision to fire Ms. Jones, did he consult with you?” contains the assumption that Mr. Smith made the decision to fire Ms. Jones. If he never made that decision, or if you had no knowledge of the decision, then the question is improper.
If you find the examining lawyer has asked such a question, you should respond that you are unable to answer. If other lawyers in the deposition object to this kind of questions as “assuming facts not in evidence,” this should alert you to the defect in the question.
Don’t Guess Details. — Be wary of giving exact information, such as measurements, dates, time, intervals and business statistics, if you are uncertain about the details, particularly when the information is available in some business or other records. If you are asked a question of this nature and you are uncertain, respond that you do not remember the exact information. If the information requested is available from certain records, you may add that any answer you give will be your best estimate only, and is subject to verification through applicable records.
If your testimony is based on an approximation, you should make this clear to the examining lawyer. Any testimony which is based on estimates should be given only where the record unequivocally reflects that this is the basis for the testimony.
Request the Document. — If a lawyers asks you questions which relate to an available document, request to see the document to refresh your memory before answering.
Correcting a Previous Answer. — If at any time during the deposition you feel a previous answer was incorrect or incomplete, immediately inform your lawyer. Depending on the situation, your lawyer may stop the proceeding to give you an opportunity to correct the inaccuracy or omission.
In the event that you recall an omission or inaccuracy after the deposition is completed, you still should bring this matter immediately to your lawyer’s attention. A letter from your lawyer to the opposing counsel which sets forth the error or omission may spare you considerable embarrassment at the trial.
If You Are Tired or Uncomfortable. — If you feel fatigued or either physically or mentally uncomfortable at any time during the deposition, immediately inform your lawyer. He or she can request a brief recess.
Be on Guard During Recesses. — There are usually one or more recesses during a deposition, and from time to time the lawyers involved will converse “off the record.” You should always be extremely guarded in your discussion of the case; it is best not to discuss the case at all. Lawyers representing opposing parties have their first loyalty to their clients. When the court reporter is transcribing testimony once again, lawyers can question you about matters that were discussed “off the record.”
Lawyer-client Discussions. — Generally, the lawyer for the witness will reserve comments until a break in the deposition. It is best not to initiate lawyer-client discussions either on the record or in the presence of opposing counsel unless absolutely necessary.
In the event that you have a question at any time during the proceedings, you may request an opportunity to consult your lawyer. You have a right to confer with your lawyer at all times, even if it requires a break in the proceedings.
Your Personal Conduct. — You should be courteous, serious, and even-tempered with regard to everyone associated with the deposition. An apparent outburst of temper, the use of profanity, or the failure to take the proceedings seriously can be extremely harmful to a witness and to the party for whom the witness is testifying. This conduct subsequently can be brought to the attention of the judge or jury.
Privileged and Confidential Information. — Communication which you have with your lawyer for the purpose of seeking legal advice, either before or during the deposition, is generally privileged or confidential. In most cases, the examining lawyer cannot compel you to testify as to any such conversations or communications which you have had.
This list, while long, covers just the basics. Working with your lawyer to understand these concepts and how they apply to your case is a good use of time if you find yourself in this position.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney. All information contained in links are the property of the linked site.