Preparing for a deposition may seem like a daunting task and it should be taken seriously. This
pre-trial oral testimony is taken under oath although no judge or jury is present. Only the
opposing attorney, your attorney, you and a court recorder will be in the room. During your time
in a deposition the opposing attorney will ask various questions and your answers will be
recorded by the court recorder. Your counsel will likely schedule depositions for the opposing
whiteness to help them build your case.
During a deposition you are sworn under oath to tell the whole truth and nothing but the truth.
Anything that you say during a deposition may be used at trial so it is imperative that you arrive
to a deposition adequately prepared for what lies ahead. Your attorney is there mainly to
facilitate but they may ask you to clarify a confusing answer and raise objections for the record.
Usually taking place in a casual setting, the intent of a deposition is to prepare the legal counsel
to use your testimony to prove their case. Knowing what to expect when you arrive and what
your attorney expects from you is of utmost importance. This requires preparation,
concentration and internal discipline.
We suggest two basic rules that should be your guideline during a deposition: “Listen, listen,
listen.” Everything that is said and the context in which it is said should be noted. The other
principle is “don’t try too hard.” Honest people with good intentions will often times try so hard to
tell the truth that they tell more than what they should. Just answer the questions adequately
and let the opposing attorney ask further questions if they so choose.
Here are 10 steps to deposition preparation we suggest and encourage:
1. Take your time – He who writes the rules wins the game
The person who sets the pace is always one step ahead of the others. By slowly approaching
the situation and thoughtfully considering each answer you can rest assured that you will
answer concisely and accurately. Don’t allow anyone else to rush you. It is your oath and your
testimony. Thus it should be relayed at your pace. Everything shared during a deposition will be
recorded and in the recordings it will be accuracy that matters not the speed with which you
relayed the answer.
Taking your time will keep you from feeling rushed, making mistakes less likely. The opposing
lawyer may try to push you faster for that reason.
Taking your time will allow you to truly understand the question and approach it with the best,
most honest and precise answer.
Taking your time will give your lawyer time to object if necessary. If there is an objection stop,
listen and wait until you are advised to continue.
2. Always remember you are making a record – You typically can’t un-ring the bell
The person who will say the least during your time in deposition truly holds the most power. The
recorder and any other note takers may seem like flies on the wall but they are recording
questions, answers, comments – anything may be taken down. Carefully reply to everything as if
you are dictating an important document.
3. Tell the truth – It makes it easier to remember what you said the first time.
Lying is a crime and it will also cause more extensive problems later on. Telling the truth means
being genuine with each answer without being defensive or over-explaining beyond what the
question asks.
4. Be relentlessly polite – Don’t tease the bear
Remember what your primary goals are during the deposition? Listen, listen, listen and don’t try
too hard. That’s your job. Theirs is to ask questions. Don’t waste your time and energy attacking
their job. It will accomplish nothing. If there is a resin for things to get difficult, let your lawyer
handle that. Stay above the fray.
5. Don’t answer a question you don’t understand
Do not answer the question unless you hear it clearly and completely. You may ask the
opposing counsel or the court reporter to repeat the question. You may also ask them to
rephrase the inquiry. Don’t guess. If you don’t “get it” simply say so and it can be explained in a
way that you will.
6. If you don’t remember – just say so
Litigation can move slowly causing testimony to be delayed for months or even years after the
events at issue. You can only testify to what you specifically remember. Don’t work to evoke
memories that are unclear. Simply state that you do not remember. This may seem unnatural
because in every day conversations we hardly admit to “not remembering” but it is a
requirement that your testimony be completely accurate and that means only stating the facts as
you know them.
7. Don’t guess
If you don’t know the answer to a question simply say “I don’t know”. After all, you pledged to tell
the truth. Two broad categories fall in to guessing:
1. Factual Details: If you first say “I don’t know” and the questioner asks for your “best
memory” clarify to them that it would only be a guess or that you would have a large
margin of error trying to pin-point the answer.
2. Inferences: In ordinary conversation we draw conclusions, inferences and opinions.
There’s a chance we may be able to deduce 95% of the answer but in a deposition it is
100% or nothing. You can only testify to what you saw, heard or did.
8. Do not volunteer
You are to answer the questions briefly, articulately and accurately. Keep it simple. If a question
becomes muddled with complication or length ask for it to be rephrased. Never educate the
questioner, volunteer information beyond the question, fill the silence or explain your though
process.
9. Be careful with documents and prior statements.
If you are quizzed about a document ask to see the document. If seeing the document is not
allowed, the document will speak for itself.
10. Use your counsel
Your counsel is there solely for the purpose of helping you. Don’t hesitate to talk to them often
and for whatever reason you see fit. It will not reflect poorly on you from the record and it can
help to calm your nerves and ensure a successful deposition.
In closing, treat depositions seriously. Making jokes or wisecracks is a great way to antagonize.
Even the mildest obscenity, ethnic, sexual or racial slurs can be taken out of context or
considered derogatory. No conversation in deposition is “off the record”. One thing is for sure:
the way you conduct yourself during deposition can make or break your case. Be cooperative,
mindful and consult your attorney at any time for clarification or assistance.