Preparing for Your Deposition

At Brown & Charbonneau, LLP it is our goal to help educate our clients and prospective clients about the litigation process as much as possible.  This helps them prepare for them for each phase of the case, as well as arm them with valuable information to help them make better informed decisions.  One such area is the client’s deposition – or sworn testimony under oath.

Helpful tips to help prepare for and give deposition testimony.

  1. Prepare.  It is critical that you take time to prepare for your deposition, both with your attorney and on your own. Since most cases settle before trial, this may be your only chance to tell your side of the story. How well you do in your deposition often has a significant impact on the case, including the settlement value of your case, so it’s important to do well.
  2. Try to make a good impression. Since the lawyer is evaluating your credibility and likeability, try to make a favorable impression. Do not get angry or annoyed. It is okay to get genuinely emotional during your testimony. One of the deposition goals is to have the attorney leave the deposition understanding what a nice, likeable and credible person you are.
  3. Dress appropriately. While the deposition will be held in an informal setting, your attire and appearance should still be considered. Dress conservatively or “business casual.” Again, you are trying to make the best impression possible. This is particularly important when the deposition is being videotaped, as it may be shown to the court or jury at trial.
  4. Take your time and think before you speak. Listen to the question and understand it before you answer. Sometimes lawyers ask questions that don’t make sense. Before you can answer a question truthfully, you must understand it. Don’t be shy about asking the lawyer to repeat or rephrase a question.
  5. If possible, try to answer all questions with: “yes”, “no”, “I don’t recall”, “I do not know” or “I do not understand your question”. This is Greg’s “Rule of 5”.

  6. Do not volunteer information. Answer only the question asked.  Do not try to explain your answers, unless you and your attorney decide that in a particular instance, you should.  This ALSO includes documents.  Do not identify documents unless specifically asked.  Force the lawyer ask you a follow up question.
  7. Do not guess. Sometimes telling the truth and being accurate mean saying, “I don’t know” or “I don’t remember.” Often witnesses feel that they should know the answer or remember the answer, so under the stress of the moment they make up an answer. Do not do that. If you don’t know or don’t remember, say so. If you are asked about dates, times or other specific questions, don’t guess. If you can approximate or give ranges, do that, but always make it clear that you are approximating.
  8. Look at documents and read them before testifying about them. Documents are often used in depositions such as documents filed or exchanged in the lawsuit, police reports, photographs, medical records, pay stubs, tax returns, etc. If you are asked to answer questions about a document, take time to look at it and read it before you start answering questions about it.
  9. Do not let the examiner put words in your mouth or “summarize” your response. Attorneys may try to alter your answer slightly by “summarizing” a prior answer as part of another question.  Be careful.  Your attorney, of course, will be watching for this as well.
  10. Be careful with compound questions. .  This is question that contains multiple parts. Unless you understand and remember each part of the question, have the attorney break down questions into smaller parts.
  11. Be careful about giving absolute answers unless you are sure. The adverse attorneys may try to catch you in a contradiction. Be careful about giving absolute answers (“absolutely yes”, “I am 100% sure”, etc.) unless you’re sure you are right. It can be damaging to your case to testify that to a fact with certainty only to be presented with an email or some other evidence later showing you were not correct. When in doubt, use less absolute answers like:  “As I sit here right now, I think you are correct”, or  “Without looking at any documents, I am pretty sure that never happened”, or “Off the top of my head, I think we did do that”.
  12. Correct yourself or add information. Everyone can make a mistake in a deposition. It is not the end of the world.  If later in the deposition you realize that you made a mistake in prior testimony or need to add something, tell your lawyer.  Then, if necessary, the testimony can be corrected or supplemented so that the transcript is completely truthful and accurate.’
  13. Tell the truth. Again, it is critically important that your testimony be 100% truthful. You are under an oath to tell the truth just like you would be in court. Remember that the Internet allows attorneys to research and verify many things. Subpoenas can also be used to uncover information. Being caught having said something inaccurate, intentional or not, can hurt your case. Honesty is truly the best policy.
  14. Do not agree to provide documents or information later. If the attorney asks you to provide documents or fill in blanks in the deposition later, politely state that such a request will have to be discussed with your attorney, who will not agree to it.
  15. Avoid humor or levity. It could be taken out of context or fall flat, neither of which helps you and can only hurt.
  16. Listen to objections. There may be some information about problems with the form of the question that could be helpful.  Remember, pause a bit when answering so your attorney has a change to object when necessary.
  17. Do not educate the examiner. Similar to not volunteering above.  If there is something technical that the examiner clearly does not understand (like complexities of your business), do not educate or help them understand.
  18. Help the Court Reporter. Your testimony will be transcribed by a Court Reporter. This can be done accurately only if you wait for the question to be finished before you start to answer. Also, your answers must be verbal (no head shaking or nodding) and understandable: say yes or no, not uh huh.
  19. Remember to take breaks. If you are uncomfortable or have a question, ask for a break. If you get tired, confused or need to talk to your attorney, do not be shy about asking for a break.
  20. Helpful tips on what NOT TO DO:
  • Lie
  • Guess
  • Volunteer
  • Neglect to read documents carefully
  • Lose your temper
  • Begin answers with “to be honest with you …”