Deposition Tips

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid, Inc.

If you are involved in a legal case, no matter the reason for the legal case, you may be asked to give a deposition. Depositions are simply a chance for attorneys to ask you questions under oath before a case goes to court. Depositions are a powerful tool, allowing attorneys to gather testimony and information, evaluate credibility, and preserve evidence. It may seem intimidating, but with the right preparation (like reading this article), it should merely be a simple yet professional conversation that you should not fret.

(1) Always tell the truth and never exaggerate. You will be under oath, swearing to “tell the truth, the whole truth, and nothing but the truth, so help you God.” Otherwise, you will be committing perjury (i.e., giving false evidence under oath). The truth shall set you free! It is the attorneys’ job to shape the truth to support their argument effectively. A deliberate misstatement or exaggeration, no matter the importance to the ultimate issue, is incredibly damaging to the credibility of a witness and thus the entirety of the case. Though a deposition should be a “simple yet professional conversation,” it is not a casual one. Your demeanor and your thoughtful responses should reflect the seriousness of the deposition.

(2) Correct your answer. During the deposition, if you discover that you have given an inaccurate answer, you have the right to correct your prior testimony, and you should do so. Being initially mistaken is nothing to be embarrassed about. In fact, it is honorable that you correct yourself. For example, you may say, “If I gave that answer a few moments ago, I must have been confused because the correct answer is . . .”

(3) An essential part of telling the truth is to be accurate about your certainty, so never guess or speculate. Some things we are certain, some . . . less so. We can easily be wrong. There are many shades in between. When you are being questioned, be accurate and do not get badgered into adopting a position that is either weaker or stronger than the truth. When you are certain, however, do not qualify favorable facts. Be as definite as possible. For example, do not say, “I do not recall that it was,” when you know that it was not. Avoid expressions, such as the following, that weaken favorable testimony: “I think,” “I guess,” I believe,” “I might have,” “Maybe,” “Perhaps, “Possibly,” “Probably,” “Correct me if I am wrong,” “If I am not mistaken,” “I expect,” “I assume,” “It seems,” and so forth. Frequently, a witness will be asked a question, and despite the fact that they feel they should know the answer, they do not. Typically, this situation will arise when you are familiar with a general practice, but you are being asked about specific incidents. You may be tempted to make a logical guess rather than state that you do not know. Resist that temptation. If you do not know the answer, even though you may appear ignorant or evasive by stating you do not know, you should nevertheless state that you do not know the answer. A guess about an answer may show you do not know what you are talking about or suggest you are deliberately misstating the truth.

(4) If you do not remember, say so. There will be times when you cannot remember certain facts. If this happens, do not be reluctant to say, “I cannot remember.” If you do remember, you are obliged to answer. A witness who pretends not to remember important facts may be discredited if they later try to convince a judge or jury at trial that they can remember the facts. Be aware that the importance of an event is usually more important than how long ago it was in determining how well you can remember it, according to some studies. If you remember something and you are asked about it, say so. If not, chances are it did not strike you as important or make a significant impression on you at the time.

(5) Only give information that is personally known. You know what you have observed. If you do not have certain information, based on your personal knowledge, do not give it. Do not promise to get information you do not have readily at hand, unless the attorney advises. Do not tell the examining attorney where the information may be obtained unless you are asked such a question.

(6) Do not volunteer any information that is not essential to answer the question. Volunteered information cannot help your attorney’s case and may even be immensely damaging in ways that are difficult to foresee. If the question can be honestly answered with a “yes” or “no,” do not volunteer a further answer unless a simple “yes” or “no” answer leaves your testimony in an unfavorable light. For example, if you are asked whether you have a certain file, you should only answer, “No,” rather than answering, “No, someone else has them.” Do not give long-winded answers or ramble. Listen to the exact questions and answer precisely. A “when” question only warrants a “time” response; a “who” question only warrants a "person” response; a “where” question only warrants a "location” response. Listening to the exact question is surprisingly difficult, so be cautious. It is very important to fight the temptation to put your answer in a detailed factual context, or to answer the question the examining attorney really should have asked. If the examining attorney asks the “wrong” question, do not help them by suggesting the “right” question or the “right” answer.

(7) Do not assist the examining attorney even if they are confused and misinformed. Frequently, an attorney will be poorly prepared or misinformed and confused about even the most basic facts. Often, however, the attorney’s apparent confusion is an act to make you lower your guard. Whether real or fake, confusion on the part of the examining attorney is their problem, not yours. Do not succumb to the natural human tendency to volunteer help.

(8) Beware of compound questions. Compound questions contain two or more questions and can be misleading. An example is “Did you formally reprimand her and then fire her?” Two separate questions are being asked, one about the reprimand and the other about the termination. If the situation entails something that would make one question be answered in the affirmative and the other in the negative (e.g., the witness did reprimand her, but someone else terminated), a simple “yes” or “no” answer should be very misleading. Hence, you should separate all compound questions into their individual components and answer them separately.

(9) Never attempt to explain or justify your answer. You are there to relay the facts as you know them. Do not apologize or attempt to justify those facts. Any attempt to do so would make it seem like you doubt the truth of your testimony. Simply answer the questions and do not try to persuade the opposing party’s attorney that your version is true.

(10) Make sure you understand the question. Never answer a question unless you fully understand it. If you do not understand, you should immediately say so. The examining attorney should rephrase the question until you understand. If you are uncertain whether you heard correctly, ask the examining attorney to repeat the question.

(11) Take your time answering the question. Never answer before the examining attorney has finished asking their question. Once the question has been asked, pause before responding. This will allow the attorney to object to the question, if needed, and allow you to consider the question thoughtfully. The deposition transcript does not show the length of time you used in considering your answer.

(12) Always finish your answer. The examining attorney may cut you off in the middle of your answer by interjecting another question, and the incomplete answer may be misleading. If the examining attorney does interrupt you, wait until they finish, explain that you did not complete your answer to their first question, and then do so.

(13) Listen to attorneys’ objections. Generally, attorneys will not make very many objections. If they object to a question, however, do not answer the question until after your attorney has finished and has advised you to continue answering the question. If your attorney tells you not to answer the question, you should refuse to do so. When an attorney objects to a question, listen carefully because the attorney will usually clearly state why the question is objectionable. Often, the issue is that the question is unclear or prejudicial.

(14) Be consistent. You may be asked the same question in several ways during the deposition to make you change your answer if it was initially unfavorable to the opposing party’s case. You should be aware of these repetitive questions, and if your initial answer was incorrect, then, to reiterate, do not be reluctant to correct your earlier testimony.

(15) Never be angry. If you get angry or upset, it is time for a break. In some respects, a deposition is a game of wits. The examining attorney may try to make you upset in the hope that you will say things that can later be used to your disadvantage. You should be aware of this tactic and try to avoid becoming angry or upset. Under no circumstances should you argue with the opposing party’s attorney.

(16) Speak clearly and avoid nonverbal responses. Unless your deposition is being videotaped, a nonverbal response cannot be accurately recorded. Hence, you should speak clearly by answering “yes” or “no” and avoid nonverbal answers (e.g., nodding, shaking, and holding hands up to indicate a distance).

(17) Never joke in a deposition. Again, a deposition is professional. Also, humor is not apparent in the cold transcript and often makes witnesses appear crude or adversarial about the truth. For the same reasons, do not give flippant or sarcastic answers or use vulgar language.

(18) Do not speak with the opposing party or their attorney when “off the record.” Remember, the opposing party’s attorney is your legal adversary. Do not let a friendly manner cause you to drop your guard. Never make any statements off the record, for opposing counsel will be certain to get those statements on the record if they appear favorable to their client’s case in any way.

(19) Beware of trick questions. The following are trick questions that may be used by the opposing party’s attorney. If you understand the trick, you should be able to deal with the question with ease.

(a) Beware of leading questions. A leading question is one in which the attorney suggests the answer they want. For example, “You never really warned the employee, did you?” Your response should be, if accurate, “I did warn the employee on several occasions.”

(b) Beware of appeals to vanity. The attorney may try to get you to admit a nonexistent fact for vanity’s sake. For example, the attorney might ask, “As the supervisor, didn’t you know that this employee was being harassed by his coworkers?” Assuming this response is truthful, you should respond, “I was unaware of any harassment.”

(c) Beware of the “have you talked to anybody about this case” and “how much are you getting paid” questions. The opposing attorney may ask, in a way that leads you to believe that the true answer will hurt you, whether you have discussed the case with your attorney or anyone else. You should respond, “Of course, I have talked to my attorney [and someone else].” Another question, which is typically directed toward expert witnesses rather than lay witnesses, is “How much did the company pay you to testify that a statistical analysis of the company’s workforce did not reveal discrimination?” You should respond, “I was not paid to testify that there was no discrimination. I was paid to do a statistical analysis and to present my findings to the Court.”

(d) Beware of the “have you stopped . . .” question. The opposing attorney may attempt to get you to admit to a fact not in evidence by asking a question like “Have you stopped beating your wife?” or “Are you still discriminating against disabled people?” These questions assume a fact not in evidence, that is, that you have abused your wife or discriminated against disabled people in the past. Attorneys will generally object to this type of question, but if they do not, you should respond (assuming it is the truth), “I have never abused my wife,” or respond, “The company does not discriminate against disabled people.”

(e) Beware of the “is that all you know” question. The examining attorney may ask, “Did you say anything else to the individual during the disciplinary meeting in question?” If you are sure you have relayed the full conversation, then say so. However, if you are uncertain, you may say, “I have told you all the conversation that I currently remember.” This will allow you to add further details that you may recall later.

(f) Beware of questions that cannot really be answered “yes” or “no.” Some answers truly cannot be answered “yes” or “no.” Do not fall for the trap of giving such answers when they will be misleading.

(g) Beware of the silent treatment. The examining attorney will sometimes remain silent for a long time after you have answered and stare at you in the hope that you will amend or add to your answer. You should ignore this tactic and remain silent. The examining attorney will eventually move on to the next question.

(20) Do not be disturbed by the scope of questions. You are required to answer every question the examining attorney asks you, unless your attorney instructs you to remain silent. Such instructions are rare, and you should assume you will have to answer every question. The rules grant the examining attorney very wide latitude, and many questions may appear to be absolutely irrelevant. Do not be anxious if the attorney goes off on what appears to be a wild tangent. Within broad limits, they are allowed to ask any question they want. It is important to realize that your attorney has the same broad questioning rights when they take the depositions of the opposing party and other witnesses.

(21) Do not be concerned by the one-sided nature of a deposition. Unlike an actual trial, a deposition is one-sided. The opposing party’s attorney asks questions, and the witness answers. An attorney’s role in defending your deposition is extremely limited. This is strategically to your attorney’s advantage, so you should not expect them to object after every couple of questions. They should be there to protect you from truly objectionable questions, and you can be assured that they should object where appropriate.

(22) Get a good night’s sleep. As simple and obvious as this advice sounds, it is true. Sitting at a deposition all day is exhausting. Tired witnesses easily become confused witnesses, so get a good night’s sleep and come to the deposition refreshed. If you do become duly tired, however, say so, and the attorneys will make appropriate arrangements.

(23) Do not memorize your testimony. Nothing is easier to detect than a memorized answer, and nothing is less credible. You should be familiar enough with the facts to be confident, but do not attempt to commit your answers to memory.

(24) Do not expect a total victory. Do not expect to come out of your deposition completely unscathed. Conflicts of testimony appear in almost every case, and almost every witness wishes they could have remembered more. Do not be disheartened by such minor imperfections. We are all human. If you answer to the best of your ability and answer truthfully, you have succeeded.

(25) Do not automatically accept opposing counsel’s preliminary statements or summaries. Occasionally, the opposing party’s attorney will misleadingly paraphrase your testimony or will preface a question with a statement that is not quite accurate. If you listen to every question carefully, you will catch these inaccuracies and be able to point them out. Be alert to any question that contains a summary of your earlier testimony or some preliminary statement of fact.

(26) Ask to see any documents you are questioned about. If you are asked about a document, ask to review it before answering, even if you have seen the document before.

(27) Do not bring any documents, notes, or other materials to the deposition unless your attorney has approved your doing so in advance. Anything you bring with you may be subject to discovery by the examining attorney.

(28) Take a break, if you want. You may take breaks for any reason at any time. If you are tired or uncomfortable, or wish to confer with your attorney before answering, or between questions, simply request a break.

For further aid, please contact a licensed attorney. West Virginia Senior Legal Aid is dedicated to defending West Virginia seniors’ rights.