Depositions – Often the “Make or Break” Point of Your
By Randall K. Edwards
I have taken and sat through hundreds of depositions of
clients, witnesses, company representatives and others. Deposition testimony is
crucial to any case, and always results in each side in a lawsuit re-assessing
their case as a result. I’ve seen cases won or lost on the strength or weakness
of a client or witness deposition.
A deposition is usually taken at an attorney’s office.
Despite the fact that there is no judge present, you will be sworn to tell the
truth as if you were testifying in court. The deposition is a formal judicial
proceeding, and is an important part of the “discovery” process in a lawsuit.
Your testimony will be recorded by a court reporter and transcribed into a
written book, which can be used against you if your testimony changes. Present
at the deposition will be the opposing counsel, your lawyer and a court
reporter. Parties to the lawsuit also have the right to attend all depositions,
unless barred for some reason by a court order.
Your attorney has the right to make objections to questions
that you are asked. These objections are generally made “for the record” – so
that if your deposition is used in a later proceeding, the judge can rule on
whether the question was proper and should be stricken from the record. Unless
your attorney instructs you not to answer – usually because a question requests
information protected by an evidentiary privilege, such as attorney-client
communications – you will be required to answer the question, regardless of the
Depositions are often high-stress and unpleasant ordeals.
Having a hostile attorney ask you questions that you may suspect are more
designed to trick you than to find the truth is sometimes like trying to balance
on a high wire without a net. Nonetheless, depositions can be handled in such a
way that your case is strengthened by your testimony.
Here are some tips for your deposition, based on my years
Dress appropriately for your deposition.
Dress in clothes that would be appropriate if you were testifying in court.
Your testimony may be videotaped and played before a jury in the trial of your
case. You want to look your best in such a case. Even if your testimony is not
recorded by video camera, you want to project the same degree of care in your
appearance as you would if you were testifying before a judge and jury. This
will project yourself as a confident and capable witness who takes your
Always tell the truth. You are under oath –
the same oath as if you were sworn into the witness box in court. If you are
shown to be anything less than truthful, you may be guilty of perjury. At the
least, if you can be shown to be lying, everything that comes out of your mouth
will be suspect. It is far better to tell the truth, regardless of how painful,
than to testify falsely.
It’s been my experience that in most cases, the truth, in
all its horror or glory, comes out in a lawsuit. It’s better that you fully
tell the truth on your terms than to let someone hostile to you try to tell your
story for you.
Do not get angry. It’s been my experience
that the first person to lose his temper in a lawsuit also loses the case. If
you speak out of anger, you are more likely to say something you’ll regret
later, and you also show that you can be manipulated. Hard as it may be, you
should always remain calm, even (especially) in the face of heated questions
from an opposing lawyer whose goal appears to be to “get your goat.”
In this regard, you should always treat the opposing lawyer
with respect – even if you don’t feel that respect is deserved. There is no
advantage to you in mistreating opposing counsel. In fact, your dislike for an
opposing counsel can so taint your view of the case that your ability to present
your side will be severely compromised.
Make sure you understand the question asked of you.
Don’t answer a question you don’t understand, and don’t speculate as to what the
opposing lawyer is asking. If you don’t understand what you’re being asked,
tell the lawyer to rephrase the question. Don’t guess at what the meaning of a
Don’t volunteer information you’re not asked for.
Once you’ve answered the question, stop talking. There’s no good to be
gained, and much harm to be done, by giving more information than you’re asked
for. While it is important to be completely truthful and to answer all
questions honestly, it is not necessary to give more information than you’re
asked for. I had a client once volunteer information in a deposition about an
embarrassing situation in their earlier life – something completely irrelevant
to the case and not asked for by the other lawyer. It caused immense problems
in the case and wasted a lot of attorney and client time before the case finally
resolved. There’s no need to give any information that you’re not asked about.
In this regard, if you can answer a question with a simple
“yes” or “no,” do so. Think of every word that comes out of your mouth as a
bullet the other side in the lawsuit can use to shoot you. The fewer bullets
you hand over, the fewer wounds that can be inflicted on you. Don’t give a long
narrative answer. Don’t be lulled into a relaxed conversation where you might
let your guard down. There is nothing casual in the deposition process – ever.
If you don’t know the answer, say “I don’t know.”
There’s no crime in not remembering something months or years after something
occurred. It is far preferable to simply say “I don’t remember” of “I don’t
know” if you can’t recall than to speculate on something that you feel you
should remember. On the other hand, if you do remember something, don’t try to
hide the truth behind the ruse of “I don’t remember” or “I don’t know” answers.
Being honest about a painful truth is always better than looking evasive when
you do know the answer.
In connection with this, try to avoid saying “always” or
“never.” Since there are no exceptions to such characterizations, it is easy
for an opposing counsel to search for an exception to your statement and make
you out as being untruthful.
Also avoid saying “I’m not lying to you” or “in complete
honesty.” Use of such phrases makes it appear as though you might lie on
occasion or speak with less than complete honesty.
Don’t be afraid to ask the opposing lawyer for a
document that might refresh your recollection. Depositions aren’t
memory tests. If the opposing lawyer has a document in his possession that you
don’t have – or that you haven’t seen for some time – it’s unfair for that
lawyer to try to play “gotcha” with it. If you are aware that a lawyer has a
document that might refresh your recollection, don’t be afraid to ask the lawyer
to let you take a look at it. If he won’t, it will reveal that the lawyer is
playing games rather than trying to get at the truth.
Don’t interrupt the
question before it’s fully asked.
In everyday conversation, we often interrupt one another as soon as we
understand the direction the talk is going. Depositions are not everyday
conversation, however. They are important interrogations, the results of
which will be on the record forever. Thus, it is important that you listen
carefully to the complete question and pause to formulate your answer. This
not only gives you a chance to calmly give the information that is asked
for, but it also gives your lawyer
the ability to interpose any appropriate objections to the question.
Ask for a break if you need one. If you need
to take a break for whatever reason, ask for one. A deposition is not an
endurance contest. If you need a bathroom break or simply a chance to get up
and stretch your legs, feel free to ask for a break. Breaks are a good time to
converse with your lawyer and to assess your testimony so far.
Be careful of agreeing with opposing counsel’s
characterization of your testimony. For example, if the other lawyer
says something like, “Would you agree with me that …” or “Now what you’re saying
is …,” you need to think carefully about whether your testimony is being
accurately summarized. If you disagree with a statement about your testimony,
feel free to correct or clarify that statement. Remember, it’s your deposition,
not opposing counsel’s.
Depositions are rarely simple or easy. Nonetheless, great
good for your case can come from your deposition testimony. With adequate
preparation, you can be confident and collected in giving a deposition.
Randall K. Edwards practices law in
Nevada, Utah, California and Arizona, with his primary office located in Salt